7 S.C. 241 | S.C. | 1876
Lead Opinion
The opinion of the Court was delivered by
We concur with his Honor the Circuit Judge in holding that the determination of the Board of State Canvassers in regard to the election referred to in the pleadings was without authority of law. It proceeded entirely upon the papers transmitted to that body by Chisolm, one of the Commissioners. They were not, in any respect, official in their character’, and afforded no competent testimony upon which the State Board could act. While we are, therefore, obliged to refuse the motion to set aside the order from which the respondents have appealed, we are not to be considered as concurring with the Judge in his conclusion against the right of the Commissioners of Election, on the abstraction and destruction of the boxes, together with the ballots, the poll lists and the official statement of the managers of the various precincts, to ascertain and certify the result from secondary evidence of the lost statements, through the medium of which action the State Board could render “ a valid determination.”
The term employed to designate the duty to be performed by the Commissioners would seem to impose an obligation beyond that of merely counting the ballots and comparing the statements of the managers. Canvassing implies “search,” “scrutiny,” “investigation,” “examination.” But whatever may be the duty of the Commissioners, they were imposed with a view by the Legislature to the fulfillment of the object intended by the Act, to wit, the ascertainment of the election from the ballots and statements returned to them by the several managers. If the intention of the maker can be clearly inferred from a general view of the whole statute, .without doing violence to the particular words he has employed, it is the duty of the Court to give it effect, for otherwise his will would be disappointed and defeated. “Such construction should be put upon a statute as may best answer the intention which the maker had in view, for ‘qui hceret in litera, hceret in cortice.” — Plowd., 232; William vs. Barkley, 11 Rep., 73. “A thing which is in the intention of the maker of a statute is as much within the statute as if it were within the letter.” — Zouch vs.
Such a construction, too, shall be put upon a statute “ as does not suffer it to be eluded.” — 3 Rep., 7 ; Magdalen College Case, 11 Rep., 72; 2 Rol., 127. “In the construction of statutes the ends contemplated are to be considered.” — Curlin vs. Chalken, 3 M. and S., 510; Andre vs. Fletcher, 2 T. R., 161. “ So the ground and cause of the making of a statute explain the intent.” — PL Com., 173, 204. And “a statute which concerns the public good ought to be liberally construed.” — Strange, 517, 518, 519.
Applying these principles, which must be recognized and respected by reason of the high authority from which they emanate, is there anything in the Act which necessarily restricts the Commissioners to a mere determination of the election by counting the votes and comparing the statements, and thus prevent them from carrying out its design, if after the votes have been counted at the respective precincts they with the poll lists and statements should be entirely destroyed? If, consistently with the rules of law, an attempt thus to outrage the will of the people, expressed in conformity with an Act of the Legislature, can be counteracted, it is the duty of the Court to interfere by the application of such legal principles as will authorize the introduction of secondary proof in substitution of that which, by its wanton destruction, cannot be resorted to.
The appointment of the Commissioners was not with a view to the conduct of the election, which was to be held and managed by persons named for that purpose, who were required to count the votes at the several precincts and make a written statement of the polls. The result of the whole vote was to be ascertained by the Commissioners and certified to the Board of County Commissioners, and the locality having the greater number of votes was thenceforth to be the County seat. The votes for each locality were to be determined by an actual count by the Commissioners of Election; but if this became impossible, not because of the default or neglect of the managers, but of the willful destruction of the ballots, we cannot see how the Commissioners, whose special duty it was to ascertain the result of the election, could not resort to secondary proof to reach the only end the Act had in view. Although the
In a government founded on the will of the people, their voice is not to be stifled by fraud, or their high behests frustrated by wrong and violence. If the purpose of the State, expressed in constitutional form, to provide a County seat through an election of qualified voters is to be set at naught by the destruction of the ’ • ballots, those charged with the ascertainment of the result of such election must resort to secondary evidence to enable them to determine it. The right follows, as an implication so necessary to the execution of the duty imposed, that, unless it is utterly inconsistent and irreconcilable with the words of the Act, it must be resorted to, so that full and complete effect may be given to the design of the Legislature, and its defeat prevented by fraud and violence.
For the reason herein already stated, the motion, however, must be dismissed, and it is so ordered.
Concurrence Opinion
I concur in the judgment as pronounced by the Chief Justice; also with the views expressed by him in reaching such judgment.
This being a case of vital importance to the people of the whole State, if the record contains sufficient to warrant this Court to so
The points discussed in the opinion of the Chief Justice are expressly raised in the judgment of the Court below ; and, aceordng to-the Constitution, I regard it as being the duty of this Court, whenever it reverses or affirms a judgment, to consider and decide every point made and distinctly stated in the cause, and to give in writing the reasons therefor.
Concurrence Opinion
I concur in the judgment just pronounced by the Chief Justice, but upon the ground alone that the action of the State Canvassers was unauthorized for want of precedent action on the part of the County Canvassers. I do not think that we can with propriety examine the question as to what evidence of the results of the election is competent to control the action of the County Board. Had they met and acted in form, but neglected some substantial duty imposed upon them in virtue of their office, a case would have been presented calling upon this Court for its judgment. But they wholly failed to exercise their legal functions in the case under consideration. The question before us does not directly involve the legality of their action but that of the State Canvassers, who assumed to disregard the want of action on the part of the local Board and to make an independent declaration of the results of the election. We are all agreed that this cannot be done consistently with the laws fixing the duties of the State Canvassers.