Segars v. ParrottSegars v. Parrott
- Reporters:
- , ,
- Before:
- McIver
Lead Opinion
The opinion of the Court en banc
was delivered by
Mr. Chief Justice McIver.This was a proceeding instituted in the Supreme Court in the exercise of its original jurisdiction, mainly for the purpose of testing the legality of the establishment of Lee County, formed from certain portions of territory cut off from the counties of Sumter, Kershaw, and Darlington. In the petition it is alleged, amongst other things, that while the result of the election, ordered by the governor, in those portions of Sumter and Kershaw counties cut off from said counties, and embraced-within the area of the said new county, “was, as reported by the managers of elections within said areas, and as declared by the commissioners of election for said two old counties, favorable to the creation of said new county; but the result of said election in the county of Darlington, embraced within the area of said new county, was as returned by the managers of election, within said last named area, and as declared by the commissioners of election for said old Darlington County, unfavorable to the creation of said new county, in that, as reported and declared, it failed to obtain two-thirds of the qualified electors of said embraced area of Darlington County in favor of such new county.” These allegations are made in the fifth paragraph of the petition, and in the twelfth paragraph it is again alleged that the proposition to establish Lee County “did not receive the favorable vote of two-thirds of the qualified electors voting in each section of said proposed new county, as reported by the managers of election, and as determined by the commissioners of election for the several old counties from which this new county was proposed to be taken.” In the sixth para*21graph of the petition it is alleged: “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.”
The respondents in their amended return say: “That the statement as to the election made in paragraphs 5 and 6 of the petition is incomplete and incorrect; and respondents aver that, not only in the Sumter and Kershaw sections, but also in the Darlington section of Lee County, more than two-thirds of the votes cast were cast in favor of the formation of Lee County; that they admit that the election so prayed for, as alleged in paragraph 5 of the petition, was field, and the name proposed for the new county was Lee County; but they deny each and every other allegation contained in said paragraph of the petition.” And they then proceed to allege that in Darlington County there were only two precincts at which an election was held, to wit-. “Cypress” and “Ashland;” that the managers at Cypress duly held said election and duly delivered to the commissioners of elections, the poll list, the box containing the ballots and a written statement of the result of the election at that precinct, showing that more than two-thirds of the votes there cast were in favor of the new county; and that the commissioners of election for Darlington County, at their first meeting thereafter, canvassed the return of the managers for that precinct and declared the result of the election there in accordance with said return; that the managers of election at Ashland precinct did not deliver to the commissioners of elections the poll list, the box containing the ballots or the written statement of the result of the election, as recpiired by statute, nor did they return the vote there cast, but two days after the election, at Darlington Court House — not at Ashland — they prepared an illegal, unauthorized and incorrect paper, alleging it to be a statement of the vote cast at that precinct, and attached thereto an affidavit of the managers, stating that a written statement of *22the result of the election had been put in the ballot box, and that the box and contents were stolen on the night of the election; that upon such paper presented by the managers, the commissioners of election, at their subsequent meeting, declared the result of the election at Ashland to be against the formation of Lee County, notwithstanding that protest had been made against the making of such declaration, and notwithstanding the fact that more than two-thirds of the votes cast at Ashland precinct had been cast in favor of the formation of Lee County, which fact was fully proved before the General Assembly, “and the truth of which these, respondents here allege and aver.” It is further alleged in the return of respondents that at the second meeting of the commissioners of election, they illegally declared the election at Cypress to be null and void, and never certified to the-secretary of State the result of the election at such precinct in tabulated statement of the vote cast thereat, as required by law, nor in any other form. In that portion of the origi - nal return of respondents which has not been amended, they say, in answering the twelfth paragraph of the petition, that “They admit that the petitioners are citizens, electors, freeholders and taxpayers in Lee County, opposed to its creation, but they deny each and every other allegation of said paragraph.”
After hearing the petition and return, as amended, and after full argument of, counsel, it appearing that certain issues of fact were presented by the pleadings, which it was necessary should be referred to a referee to hear and determine, a question thereupon arose as to what issue or issues of fact should be referred to the referee, and there being a difference of opinion amongst the members of the Supreme Court as to that question, and two of the Justices of this Court having expressed a desire that all of the Circuit Judges should be called to the assistance of the Supreme-Court, for the purpose of determining that question, in accordance with the provisions of section 12 of art. V. of the-present Constitution, an order to that effect was accordingly-*23passed on the 8th of June, 1898, and in pursuance of that order the Circuit Judges have been called.in by the Chief Justice.
*27
For the foregoing reasons we cannot adopt the construction of sec. 5 of the act of 1896, contended for by the respondents, as such a construction w‘ould bring the act into direct conflict with the Constitution; and, on the contrary, we must adopt the construction of sec. 5 therein, above first suggested, as that will avoid any conflict between the act and the Constitution.
From this it follows that the only questions of fact necessary to be referred to a referee are (1) • whether the board of commissioners of election for Darlington County certified the result of the election held in those portions of said county proposed to be cut off for the purpose of forming the proposed new county of Lee, under the order of his excellency, the governor, in tabulated statement of the vote at each pre*31cinct, and transmitted the same to the secretary of State; (2) if so, whether it appears from such statement that two-thirds of those voting at such election were in favor of the •establishment of Lee County.
The judgment of this Court, as at present constituted, in accordance with the foregoing views, has heretofore been .announced in a short order heretofore filed.
Messrs. Justices Pope and Gary, and Judges James Aid-rich, Ernest Gary, J. C. Klugh, W. C. Benet, and R. C. Watts, concur.
Dissenting Opinion
Mr. Justice Jones,
It is argued that it is a judicial function to ascertain the result of an election, and that, therefore, under sec. 14, art. 1, of the Constitution, which provides for the separation of the legislative, executive, and judicial powers of the government, and forbids any person exercising the functions of one of said departments to discharge the duties of any other, the legislature has no power to determine for itself the result of such election, that such determination would be an usurpation of judicial power. This argument, it will be readily seen, ignores the principle that the Constitution must be read as a whole. It may be granted that it is in some respects a judicial function to ascertain the result of an election, yet it does not follow that it is beyond legislative power to ascertain the true result of an election upon the formation of a new county, for the reason that the same Constitution which forbids encroachment by one department on the powers of another, also makes it the duty of the legislature to ascertain the existence of all conditions preliminary and requisite for the creation of a new county; because, as said, the power to create new counties on specified conditions, by implication, carries the power to ascertain for itself whether the necessary conditions exist. Therefore, you may call the exercise of such power a judicial function, it is nevertheless a legislative power under the Constitution. This is made very clear when considered in reference to other constitu*33tional conditions necessary for the formation of a new county, whether the proposed new county contains the necessary population, the necessary taxable property, the necessary area, whether the proposed new county line runs within eight miles of the court house of any old county, whether the formation of the proposed new county would reduce any old county to less than 500 square miles in area, or less than 2,000,000 taxable property, or less than 15,000 of population. Must not the legislature ascertain for itself whether these conditions exist ? It can in ascertaining the facts use its agents and committees, but as the creature is not superior to its creator, no report of an agent or committee on these facts is final and conclusive as to the legislature. Why should the report of commissioners of election in the matter of the condition as to the requisite two-thirds vote be final and conclusive ? It is conceded that it is essential to have a special election to ascertain the existence of the requisite vote, but the power to ascertain the result of the election according to the truth, must still be in the legislature as a preliminary to its action. But it is argued that in the “Act to provide for the formation of new counties, &c.,” approved March 9th, 1896, 22 Stat., 64 — the legislature had manifested an intent that the return of the commissioners of elections shall be final and conclusive. It is extremely doubtful whether the legislature could abrogate its duty to ascertain for itself the existence of conditions preliminary to the formation of new counties, but pass that by. I contend that in the act supra, the legislature clearly meant to reserve to itself the ascertainment whether the requisite vote was had in the steps to form a new county. The requirement in section 3 that “such election shall be conducted in the same manner as general elections in this State,” may fairly be construed as relating solely to the manner of conducting elections as ■provided in sections 166 to 173 inclusive of the Revised Statutes, such as the regulations for opening and closing the polls, the administering of oaths, the keeping of poll lists, ■.the counting of the ballots by the managers, the statement of *34the result and the delivery of the poll lists, the boxes containing the ballots and a written statement of the result to the commissioners of election. So the language in the fourth section requiring the commissioners of elections to canvass-the returns “as such returns in general elections are canvassed,” can be fairly construed as relating to the manner of canvassing and certifying the result to the secretary of State, and not as conferring on the commissioners of election the powers of the board of county canvassers in general elections. The exercise of the powers of the board of county canvassers in general elections is subject to the right of appeal to the board of State canvassers. But the legislature expressly required the commissioners of election to certify the result to the secretary of State, who in turn should transmit to the General Assembly. This seems to eliminate the board of State canvassers as a tribunal to which an appeal might be taken from the commissioners of election, and it is impossible, without express language to that effect, to conceive that the legislature meant to confer upon the commissioners of election such powers as contended for, without. having provided for an appeal, unless the legislature intended to reserve for itself the right to ascertain the true result of the election. It is not at all probable that the legislature would make the commissioners of election of established counties, who according to human nature and experience, would be expected to be opposed to the dismemberment of these counties, the sole and final arbiters on the question of dismemberment; but it is easy to understand why the legislature would authorize such commissioners of election to-canvass the returns in the manner such returns are canvassed in general elections, with the provision that the returns, or a statement thereof, be sent to the secretary of State to be by him transmitted to the legislature, which by the Constitution must decide for itself whether conditions-exist which are necessary for the formation of a new county. No one would contend that the decision of a board of county canvassers is final as to an election of governor or a member *35of the General Assembly. Why? Because by the Constitution contested elections for governor are to be determined by the General Assembly, and because by the Constitution each house shall judge of the election returns and qualifications of its own members. It follows that no one ought to contend that the decision of the commissioners of election is final and conclusive in the matter of an election for the formation of a new county. Why? Because under the Constitution it is the duty of the legislature to ascertain for itself whether constitutional requirements for the creation of a new county have been complied with, the power to create upon conditions necessarily implying power and duty to ascertain the existence of such conditions.
But further, the fifth section of said act of 1896 makes it perfectly manifest that the legislature did not intend to make the decision of- the commissioners of election final and conclusive. It reads: “The General Assembly at its next session shall create such new county‘, if two-thirds of the qualified electors voting at such election shall vote in favor of the establishment of such new county, and if all the constitutional requirements for the formation of new counties have been complied with, of all which such General Assem - bly must judge.” I will not lay stress on the fact, but I call attention to it, that this section does not say that the General Assembly shall create the new county, if the result of the election as returned by the commissioners of election, is in favor of the establishment, as it would have said naturally if such had been the legislative intent; on the contrary, the new county is to be created if two-thirds of the qualiñed electors voting at such election shall vote, &c. But what I do wish to emphasize is this language of the section, “of all which such General Assembly must judge.” This most distinctly and positively affirms that the decision of the commissioners of election is not final, and that the legislature will judge for itself as to compliance with all constitutional requirements. I confess my inability to see how this can be doubted. It is said that to give this construction would place the act in *36conflict with the Constitution, which if possible shpuld be avoided. By the same reasoning ought we not to avoid a construction, the effect of which will inevitably result in declaring the act to establish Lee County void, if perchance the result of the election as returned by the commissioners of election is different from the result as declared in the act? But I do not think ‘the fifth section conflicts with the Constitution. The legislature, as I construe the section, did not mean to make itself the final judge whether all constitutional requirements have been complied with, but meant to reserve its right of ascertaining for its own guidance whether constitutional requirements have been in fact complied with. The language certainly negatives the idea that the decision of the commissioners of election was intended to be final. T agree fully that the legislature is not the final judge of the existence of conditions essential under the Constitution for the creation of a new county. My view in this matter is that the legislature must in the first instance determine for itself whether constitutional requirements for the formation of new counties have been complied with, in order that it may exercise its power and discharge its duty in the premises; but when the act creating anew county is passed, it is within the power of the Courts to declare such act unconstitutional, if it clearfy or beyond a reasonable doubt appears that some constitutional requirement has not in fact been complied with. The presumption is that the act of the legislature is valid and is consistent with the facts appertaining to the discharge of its duty and exercise of its power. On those who assail it rests the burden of showing clearly some constitutional vice. As against an act of the legislature deciding to the contrary, the return of commissioners of election in the matter of forming a new county is not final and conclusive.
If I am correct in these views, then the reference of issues in this case should go further than provided for in the order of the Court, so as to allow the parties to show the true state of‘facts, under the issues of fact raised in pleadings, *37independent of the return of the commissioners of election, and independent of the action of the legislature thereon. But, in any event, the limitation of the reference to the mere ascertainment of the result of the election, as returned by the commissioners of elections, should not be based on the ground that such returns of the commissioners are final and conclusive. Under my view, a reference merely to ascertain what was returned by said commissioners is of no avail, since such return in no way concluded the legislature on the question whether the requisite vote was had for the formation of Lee County.
Judge D. A. Townsend concurs.
Dissenting Opinion
The Constitution, art. VII., sec, i, provides for beginning the machinery looking to a vote upon the subject of a new county. It provides for the petition to the governor, “setting forth the boundaries, and showing compliance with the-*41requirements of this article, the governor shall order an election within a reasonable time thereafter by the qualified electors within the proposed area, in which election they shall vote ‘Yes’ or ‘No’ upon the question of creating such new county, and at the same election the question of a name and a county seat for such county shall be submitted to the electors.” Let us stop here and see what the governor is to do. He is to judge and determine whether‘the “requirements” of this article have been performed. What aré the requirements of this article? (i) That one-third of the qualified electors within the area of each section of an old county proposed to be cut off has petitioned him for the creation of the new county. (2) That no election upon the question of forming the same proposed new county has been held within four years last past. (3) That the proposed new county to be formed will contain at least the 124th part of the whole number of the inhabitants of the State. That it will contain assessed taxable property of the value of $1,500,000, and area not less than 400 square miles (sec. 2). (4) That no old county will be reduced to less area than 500 square miles; (b) nor to less assessed taxable property than $2,000,000; (c) nor to the smaller population than 15,000 inhabitants; (5) nor that an old county will be cut within eight miles of its court house building. Logically and necessarily, he must determine whether those conditions have been complied with. He must be satisfied and must determine from the evidence before him that the area is properly surveyed, the inhabitants counted and the various requisites so mentioned have been complied with, that no election upon the question of formation of the same new county has been held within the last four years, &c. There is no appeal. If the Constitutional Convention intended to give an appeal to another body, it would have been very easy to have said so. This is the power given the executive, and it is given in the same instrument which says (art. I., sec. 14) : “the legislative, executive and judicial power of the government shall be forever separate and distinct from each other,” so that the *42necessary means for carrying into effect the general scheme for the organization of new counties as laid down in article VII. cannot be considered as trenching on the powers of the judiciary. The power given in article VII. not being in derogation of the independence of the three departments of government, the exercise of such power in whatever way the legislature may see fit cannot be in derogation of the judiciary- — -one of these departments. Nor can the judgment of the executive be controlled or regulated by another department, while following the powers laid down in sec. i, art. VIL, for the power given to one department is exclusive of and altogether free from the other branches of the government This view is illustrated by the-line of authority which construes the powers of the executive to remove officers for certain derelictions of duty, in which it is held that “The grant of power to the executive to remove an officer for a certain cause implies authority to judge of the existence of that cause.” “Here the law invested the governor with discretionary power which could alone be employed by him. The decisions of all the Courts of the State could not compel him to make the removal.” State ex rel. Attorney General v Doherty, 13 Am. Rep., 132. See chapter 3 of “Executive Power,” by Chambrun (translation by Mrs. Dahlgren, preface by Jas. A. Garfield, afterwards President); Nobles v. Union &c. Railroad, 147 U. S., 165; New Orleans v. Paine, 147 U. S., 261; Tenure of Office Decisions; Grier v. Governor Taylor, 4 McCord, *206. If this view be the one held where there is no special provisions pertaining to the subject in the Constitution, how much stronger must it be when the Constitution has declared that these powers shall be possessed by the governor and the legislature, notwithstanding the general rule of construction of the powers of the co-ordinate branches of the State government? The Constitutional Convention must be taken to have known the decisions as to the enforcement of election laws. Doubtless they knew that .there had never been (and it was improbable, if not impossible, that there should ever be) a technical com*43pliance in any election with all provisions of the statute. Doubtless they were practical men, and knew that frequently the voice of the people was responsive, notwithstanding the fact that in some precinct or precincts the votes cast were not sent up. Elections were never avoided for such a matter, where the wish of the people had been thus expressed and registered. Having the power to determine what facts shall satisfy their minds, for convenience can they not appoint an agency whereby such facts may be the easier taken ? Having the power, have they not the right given them to exercise all those incidentals of power whereby its intelligent exercise may be promoted ? If that body has the power to procure information through a specially appointed commission, has it not a right to reserve its action and judgment upon the sufficiency of the matters reported to it? No attempt is made here to deny the right of the judiciary to declare an act unconstitutional for non-conformity to the constitutional requirements. To do this is one thing; to determine that the matters asserted by the General Assembly to have existed in order to the carrying out of their purpose and bringing into operation their power, constitutionally given, did not exist, is quite another thing. To do the one, is wholesome and proper, and a necessary guarantee of a republican form of government with an equilibrium maintained — a protection of rights and property. To do the other, is to reverse the lawfully expressed opinion of the people through the only channel provided for such expression. The significance of the right to interfere and weigh the evidence that may have been before the legislature, the existence of which started the exercise of its function, cannot be exaggerated, when it is remembered that the right to give judgment upon this feature, necessarily carries with it and logically presumes the power to carry the judgment into effect. Execution differs from judgment not in the quality of its power but only in the time and manner of its employment. The power given for convenience to a commission or tribunal (by whatever name called) to gather the evidence *44is that of the legislature itself, and does not differ in kind from the exercise in open house of legislative functions. To fetter the one is to fetter the other; to dam up its powers anywhere is to deny its right to proceed everywhere. There is no difference in principle from enjoining the house committee on elections and a special committee or tribunal to take testimony for legislative action; nor is there any more jurisdiction to inquire into the duties of one than into the duties of the other, and no difference in principle from enjoining the benefit of such legislation than enjoining the General Assembly itself. The respondents represent but the fruit of the tree.
I have adverted to the hardship that the declaring unconstitutional the act of 1898 would do to the people who now fondly suppose they are organized into .a new county. This hardship and embarrassment was met by the ■ Court in Rumsey v. The People, 19 N. Y., 41, which said that the organization of a new county will not be declared invalid even where it was originally and perhaps unconstitutionally introduced, when the existence thereof has been recognized by the legislative power, and it has been so incorporated into the State system that it cannot be severed without seriously embarrassing the whole. Can it be truthfully said that the State is not interested in this matter, when the representation of the old counties is cut down in order that the new county shall send representatives in proportion to area and ■population, and the new county is then not allowed such representation for such territory and population? The State is without the influence and services of the representatives she is entitled to rely upon in the General Assembly, and the proposed territory has taxation without representa■tion. A political organization being for the benefit of a community, as such community, exclusively, a private person has no property rights in it. This results from the fact that government exists for the common benefit, and its powers ■cannot be appropriated to the exclusive benefit of individuals except by violence destructive of its principles—Alexander v. McKenzie, 2 S. C., 90. The political power concerns so nearly the public policy of the State, that the exercise of that part of the statehood and sovereignty of the people, so peculiarly legislative, should not be interfered with unless the incompatibility be clear and unequivocal. It is a matter of serious importance. I am of the opinion that if the other rule is to be considered the law in the formation of new counties in South Carolina, none will ever be formed. It is scarcely possible to hold an election without some noncompliance with the technical requirements. The Consti*50tutional Convention and the legislature contemplated that the results of the election was the thing desired, not the rule-of technical compliance,substantial compliance, a compliance-showing the expression of -opinion of the requisite number. They did not intend to have one rule by which to judge the-results of a general election, and a stricter rule (an almost impossible one) in elections for new counties — a rule that any manager in hostile territory may defeat, and be allowed, the benefit of the wrong done to the credit of the old. county’s territory.
*52
In 1827, there was an election for sheriff of Georgetown, and there were two competitors, Grier and Thaxton, and Thaxton was declared elected by the manágers. A motion for prohibition was made before Judge Bay, and among other things he said: “In our country, the people are supreme. All civil power and authority is derived from them; and by virtue of their inherent prerogatives, they have thought proper, in order to establish justice and to prevent all irregularity and confusion, to make known and publish to the world their great republican charter, called a Constitution, by which all the powers of the State are regulated and governed. By this Constitution, all the- powers of the government are distinctly defined ‘and vested in their separate branches, namely, the legislative, the judicial, and the executive, all of which are independent of and have no control over each other. The legislative branch has the power of making and enacting all laws for the government of the citizens; the judicial has the power of construing those laws so made, and of declaring their bearings on the citizens; and the executive is charged with the authority and power of causing all those laws to be duly executed, and of granting commissions to all the officers of government for the exercise of their respective functions in office, for the benefit of the whole. But no one of these different departments has any right to interfere with the others in the legal execution of their official -duties. It is admitted that the Judges of the superior courts of law, in the exercise of their *74judicial powers, have a right by the common law of the land, which is recognized by the Constitution, to send out this high prerogative writ to restrain all the inferior courts and jurisdiction or bodies of men appointed for special purposes, from doing illegal or unauthorized acts. But they have no power or authority to send out a writ to either of the other great branches of the government; for, if they had such a power to invade the province of the executive, and to say he shall not exercise his official right of issuing commissions, &c., it is difficult to see any good reason why they should not send the same writ to the other great branch of the government, to restrain it from passing any law which they might conceive was an impolitic or unconstitutional act. Thus a doctrine would be laying the foundation for a scene of confusion and clashing of jurisdiction.” Grier v. Taylor, 4 McC., *206. Is there not application now for this decision? What has equity here to work upon? It must be moved by some property right — I repeat, there is not set out in the petition here a right that equity protects. That equity does not protect political rights, is a doctrine so fundamental and ingrained into our system of government, that authority is not needed to support it. See Green v. Briggs, 16 C. C. A., 516. High on Inj., secs. 702, 1311. 1315, 1206. Indeed, the authorities go so far as ro say, if an attempt were made to interfere with such right, the refusal to obey such an injunction would not constitute a contempt. High on Inj., 1286, 1312, 1314. How is it possible for the petitioners to be injured in their private rights, passes all understanding, unless the establishment of a new county is, per se, injurious. The party seeking relief must show clear legal or equitable right, and a well grounded apprehension of immediate injury, in order to justify the granting of an injunction. The injury must also be irreparable — not to be repaired by money. If adequate reparation could be made, then he should resort to the law side of the Court — mere apprehension and fears of the plaintiffs, unsustained by facts establishing their probability, will not *75constitute a sufficient ground to warrant interference by injunction. High on Inj., 35, 722; 10 Am. & Eng. Ency. Law, 783, et seq. The statement of facts should be so strong, as if made by a plaintiff on the witness stand would justify (if uncontradicted) a judgment for him. I do not think the matter set up in the petition states facts enough. In addition to the ordinary strictness in this character of cases, the petitioners should set out that they did not vote for the creation of the new county but against its formation, and exhausted all their efforts in vain. It is ‘true, that the issuing of the writ is within the discretion of the Court — not to be exercised by a capricious judgment based upon imaginary injury and ambiguous and indefinite allegations, speaking by conclusions and not averments, but a judicial discretion — a discretion controlled by precedent and authority. Such discretion, based upon such a consideration of the allegations of the petition, which nowhere make such an attack upon the act of 1898 (or other act) calling for a decision upon its constitutionality, in my judgment, would refuse the writ. It is a matter of grave consideration to declare an act unconstitutional, and the allegations of the pleading should plainly make such- an attack. I repeat, that such an attack is not made by the allegations of the petition here— it but vaguely charges that the act is null and void, because the statement of fact in the act was contrary to the evidence. An allegation that heretofore coming on appeal from the humblest court has uniformly been construed as not worthy of consideration. It is an allegation that does not move the Court to consider the matter. The plaintiffs do not attack by their petition the constitutionality of the act — such a statement as required nowhere appears. If, under the constitutional administration of justice in this country, the Courts are given the power of supervision over corporations formerly claimed by the King in his Courts, it must still be exercised (unless in exceptional cases, of trusts, charities, &c., not necessary here to be noticed), according to the course of the common law — Chancellor *76Kent, in Attorney General v. Utica Ins., Co., 2 Johns. Ch., 387, 388. The same great authority lays it dowh, that if the matter “does not touch the enjoyment of-property, it blight not to be brought within the direct jurisdiction of the Court which was intended to deal only in‘matters of civil right resting in equity, or where the remedy at law was not sufficiently adequate. Nor ought the process ‘of injunction to be applied but with the utmost caution. It is the strong arm of the Court, and to render its operation benign and useful, it must be exercised with great discretion and when necessity requires” (it), p. 378, 379. The learned Chancellor above, in speaking of the great case of The King v. The Master and Fellows of St. Catharine’s Hall, 4 Tem. Rep., 233, said: “Lord Kenyon, in giving the opinion of ‘the Court, said that corporate bodies which respected the public police of the county, and the administration of justice, were better regulated under the superintendence of the King’s bench, &c.” I will close this opinion with a statement which was uttered by Chancellor Kent, Attorney General v. Utica Ins. Co., 2 Johns. Ch., 391, declaring “the process of injunction is too peremptory and powerful in its effects to be used in such a case as this without the clearest sanction. I shall better consult the stability and utility of the powers of this Court by not stretching them beyond the limits prescribed by the precedents.”
On November 18, 1898, the referee filed his report, and after setting out in full the papers examined by him, and proceedings had before him, he arrives at the following conclusions :
That the board of commissioners of election for Darling-ton County did not certify the result of the election held in those portions of said county proposed to be cut off for the purpose of forming the proposed new county of Lee, under the order of his excellency the governor, in tabulated statement of the vote at each precinct, and transmit the same to the secretary of State.
This finding dispenses with the necessity of any inquiry *77or finding by the referee on the second issue referred to him.
The case came on for trial before the Supreme Court on the report of the referee on December 19, 1898.
The opinion of the Supreme Court was
delivered by
Mr. Chief Justice McIver.We do not propose to consider any of the grounds upon which it is claimed that said act is unconstitutional except one, to wit: that section 2 of art. VII. of the present Constitution was not complied with. In that article the General Assembly is invested with power to establish new counties in the manner therein prescribed; and sectic n 2 of that arti ■ cle provides, amongst other things, that “Do section of the county proposed to be dismembered shall be thus cut off without consent by a two-thirds vote of those voting in such sections,”, and it is alleged that in Darlington County — one of the counties proposed to be dismembered for the purpose of forming Lee County — -such consent was not obtained by a two-thirds vote of those voting in the section proposed to be cüt off from Darlington County. This allegation being denied by the respondents, an issue of fact was thus presented, and hence it became necessary to determine whether the law made any provision, and if so what, by which such *78issue of fact should be determined. The Supreme Court, as organized in its ordinary form, not being able to agree as to this matter, all of the Circuit Judges were called to the assistance of the Supreme Court, under the provisions of section 12 of the fifth article of the Constitution, and the Supreme Court as thus organized, sitting en banc, heard and determined the question by the opinion of a majority of that tribunal, filed 3d of December, 1898. By reference to that opinion it will be seen that the judgment of a majority of the Supreme Court en banc was that the question whether two-thirds of those voting at the election in that section of Darlington County proposed to be cut off for the purpose of forming Lee County, had voted in favor of such new county, could only be properly ascertained in the mode prescribed by the fourth section of an act entitled “An act to provide for the formation of new counties and the changing of county lines and county seats and consolidation of counties,” approved 9th of March/ 1896 — 22 Stat., 64, 67 — which reads as follows: “The commissioners of elections for each old county proposed to be cut shall canvass the returns of the managers of each precinct in their county at which such election has been held, as such returns in general election in this State are canvassed, and shall certify the result thereof in tabulated statement of the vote at each precinct to the secretary of State, who shall transmit a tabulated statement of the vote at each precinct of an old county proposed to be cut off to both branches of the General Assembly at its next session.” After this judgment of the Supreme Court sitting en banc was rendered, this Court, as at present organized, passed an order referring it to a referee to inquire and report as to the issues of fact as settled by the judgment of the Supreme Court sitting en banc. In obedience to this order the referee has made his report, from which it is very obvious that it does not appear in the manner prescribed by law that two-thirds of those voting in that’ section of Darlington County, which was proposed to be cut off for the purpose of forming Lee County, voted in favor of the pro*79posed new county of Lee. Inasmuch, therefore, as it was not made to appear in the manner prescribed by law, that the constitutional requirement that “No section of the county proposed to be dismembered shall be thus cut off without the consent by a two-thirds vote of those voting in such section,” so far, at least, as Darlington County is concerned, it follows necessarily that the General Assembly had no constitutional authority to establish Lee County, embracing as it does a part of Darlington County, the voters in which had not signified their consent thereto by the majority required by the Constitution.
The judgment of this Court is, that the act entitled “An act to establish Lee County,” approved 19th of February, 1898, was passed without constitutional authority, and is therefore’ null and void. And it is further adjudged that the respondents herein, to wit: J. L. Parrott, John C. Shaw, J. P. Kilgo, E. E. Tiller, A. E. Skinner, A. M. Lee, R. E. Carne, W. W. Heron, J. W. Gardiner, J. E. McCutchen, S. F. Moore, and Wm. Kelly, named as commissioners in said act, and charged with the performance of certain duties and the doing of certain acts prescribed in said act, be and they and each of them are hereby perpetually injoined from performing any of said duties or doing any of said acts.
Concurrence Opinion
concurring. While still entertaining the opinion that the act in question is constitutional, yet in view of the decision of the Supreme Court en banc, by which I am bound, I concur in the result herein as the logical result of that decision.