Robinson v. McGown , 104 S.C. 285 ( 1916 )

This is an application to the Court, in the exercise of its original jurisdiction, for a writ of certiorari for the purpose of determining the validity of the election held on the 14th of December, 1915, on the question of creating a new county from portions of the counties of Abbeville, Edgefield, and Greenwood. The result was declared to be in favor of the new county, and at the last session of the legislature an act was passed creating such new county, but subject to the decision of the Supreme Court in this proceeding, which was then pending. In 1914 there was a similar election, which upon the face of the returns appeared to be in favor of the creation of the new county. That election, however, was contested; one of the grounds being that qualified electors residing in a portion of Greenwood county, from which it was sought to create the new county, were denied the right to participate in the election on account of the failure of the proper officers to open the polls at certain precincts where they were registered, and that the said electors were sufficient in number to have changed the result.

The first question that will be considered is whether Greenwood county can be reduced below 500 square miles for the purpose of creating the proposed new county. Our views upon this question are fully stated in the case of Rhame v. DuRant, 93 S.C. 217, 76 S.E. 611, and are to the effect that the words "old county" have reference to a county in existence when the Constitution was adopted. As the county of Greenwood was created after the adoption of the Constitution, the provision that no old county shall be reduced to less than 500 square miles has no application.

The next question for determination is whether the Governor was limited to 20 days within which to order the election after the filing of the commissioners' report. The statute is merely directory, and the action of the Governor in this respect is not subject to review by the Courts. Lamar v. Croft, 73 S.C. 407, 53 S.E. 540; Fraser v. James, 65 S.C. 78,43 S.E. 292; State v. Board of Registration, 87 S.C. 474,70 S.E. 898.

The last question for consideration is whether the election was ordered and held in violation of section 2, art. VII of the Constitution, which provides that:

"An election upon the question of forming the same proposed new county shall not be held oftener than once in four years."

The question under consideration is dependent upon the meaning of the word "election," as used in the Constitution. The rule laid down in Cooley's Constitutional Limitations, pp. 73, 74, in reference to the construction of Constitutions, is as follows:

"In interpreting clauses we must presume that words have been employed, in their natural and ordinary meaning, as Marshall, C.J., says: 'The framers of the Constitution, and the people who adopted it, must be understood to have employed words in their natural sense, and to have intended what they have said. This is but saying that no forced or unnatural construction is to be put upon their language. * * * Technical reasoning is misplaced when it is brought to bear upon an instrument framed by the people themselves, for themselves, and designed as a chart upon which every man, learned and unlearned, may be able to trace the leading principles of government.'"

An election takes place whenever the electors cast their ballots, under proceedings authorized by law, for the purpose of determining the result upon a question submitted to them, and such result is declared. The object to be accomplished by the said provision is very material in arriving at the sense in which the word "election" is used in the Constitution. There can be no doubt that the intention was that the people within the area of a proposed new county should not be annoyed by elections oftener than once in four years.

MR. JUSTICE HYDRICK says:

"No doubt, if the first election had not been contested and set aside, it would have been a bar to the second. But that does not impair in the lest the rule that, when that which is voidable has been adjudged to be void as to all parties interested, it is, as to all rights or interests thereafter based upon it, as if it never existed."

This is true as a general proposition, but it seems to us that the fallacy in the argument lies in the fact that, when the election was set aside, it was not, as to all rights or interests thereunder, the same as if the election had never been held, for the reason that such a construction in this case would destroy the rights of the people to be protected from the annoyance attendant upon a subsequent election within four years, as contemplated by the Constitution. The annoyance arising out of an election which is set aside on account of an irregularity in the conduct thereof is just the same as in the case of a valid election. Every step which it is necessary to take in the conduct of a valid election must be taken in one that is afterwards set aside, as the question whether the irregularity is material cannot be determined until it is ascertained by a count of the ballots whether the number of those who were prevented from voting was sufficient to change the result of the election. Parler v. Fogle, 78 S.C. 570,59 S.E. 707; State v. Board of Canvassers, 79 S.C. 414,60 S.E. 967.

There were many members of the constitutional convention who were not lawyers, and it is unreasonable to suppose that they contemplated the technical distinction between the result of an election caused by a majority of the electors casting their ballots against the creation of a new county and a result brought about by a mere irregularity in the conduct of the election; the distinction being, as contended, that in the first instance there could not be another election within four years, while in the latter event an indefinite number of elections could be held in that period. There were also many lawyers in that convention, yet they did not see fit to provide that an indefinite number of elections might be held within four years if the previous election was set aside on account of an irregularity in the conduct thereof. It is a familiar rule of construction that, whenever a provision in an instrument of writing is susceptible of two interpretations, one of which will defeat its object, while the other will enable it to be carried into effect, the latter construction is to be preferred. If the members of the convention had intended that the word "election" should be used in any other than its ordinary meaning, it is but reasonable to suppose that they would have added a provision to the effect that said election should not be applicable to elections that were set aside for irregularities. It seems to us, therefore, that any other construction practically interpolates into that section a proviso which the convention did not see fit to adopt. As the convention did not see fit to insert a proviso that the section should not be applicable if the election was set aside, it cannot now be contended that such was its intention, unless there is a resort to the doctrine of implication. It would, however, be unreasonable to imply such an intention, when it would have the effect of giving to the word "election" an unusual meaning, and would defeat the admitted object of the constitutional provision.

In Norton v. Bradham, 21 S.C. 375, the Court quotes with approval the following language from Cooley's Const. Lim.:

"The people will be presumed to have expressed themselves in careful and measured terms, corresponding with the immense importance of the powers delegated, leaving as little as possible to implication."

In the same work, on page 78 (6th ed.), the author says:

"When the means for the exercise of a granted power are given, no other or different means can be implied, as being more effectual or convenient. * * * Another rule of construction is that, when the Constitution defines the circumstances under which a right may be exercised, the specification is an implied prohibition against legislative interference to add to the condition."

In Potter's Dwarris on Statutes the rule is thus laid down:

"That, where the language is explicit, the Court is bound to seek for the intention in the words of the act itself, and they are not at liberty to suppose or to hold that the legislature intended anything different from what their language imports."

In section 4, of Endlich on the Interpretation of Statutes, it is said:

"The legislature must be intended to mean what it has plainly expressed, and consequently there is no room for construction. * * * Where the words of a statute are plainly expressive of an intent not rendered dubious by the context, the interpretation must conform to and carry out that intent. It matters not in such a case what the consequences may be. It has, therefore, been distinctly stated (quoting from Wilberforce on Stat. Law) from early times down to the present day that Judges are not to mold the language of statutes in order to meet an alleged convenience or an alleged equity; are not to be influenced by any notions of hardship, or of what in their view is right and reasonable, or is prejudicial to society; are not to alter clear words, though the legislature may not have intended the consequences of using them; are not to tamper with words for the purpose of giving them a construction which is supposed to be more consonant with justice than their ordinary meaning."

That author also declares that considerations of public policy are not to be considered, quoting the following language of Mr. Justice Story:

"Arguments drawn from impolicy or inconvenience ought here to be of no weight. The only sound principle is to declare it a lex scripta est, to follow and obey."

The foregoing are quoted with approval in the case ofBeaty v. Richardson, 56 S.C. 173, 34 S.E. 73, 46 L.R.A. 517. The rules governing the interpretation of statutes and Constitutions are practically the same. Kent's Comm., vol. IV, p. 441.

The conclusion announced in the opinion of Mr. Justice Hydrick cannot be sustained unless it should be held that there was an implied proviso to the effect that section 2, art. VII of the Constitution, should not be applicable if the election should be set aside for irregularities which would be inconsistent with the express language of said section, and would defeat its admitted object.

Contesting an election is not a necessary or usual incident to the holding thereof; and the setting aside of an election is separate and distinct from the physical fact of holding it. The Constitution contemplates the physical fact of holding an election which is complete, although it may afterwards be set aside for irregularities. But there was also another object in view when the convention adopted the provision that an election should not be held oftener than once in four years. The people within the areas of the old counties not included within the proposed new county likewise have rights under the Constitution, as well as those within the area of the proposed new county. It is true they cannot participate in the election, but, as the old counties are affected by the result of the election, they have the right to insist that the new county should not be created, unless there was a compliance with all the conditions imposed by the Constitution. The convention foresaw that, if elections were allowed to be held ad libitum, the opponents of the new county would lose interest and become less viligant, and that the result of the election would be largely dependent upon the importunity of the proponents of the new county; hence the provision limiting the number of elections. Furthermore, a statute was enacted in 1908 (now section 644, Code of Laws 1912) which provides:

"That hereafter no election shall be ordered for the creation or establishment of any new county which shall embrace one-half or more of the area of any proposed new countyin which an election for its creation was defeated withinfour years next preceding the date of the filing of the petitionfor such new county." (Italics added.)

It will be observed that the statute does not contain a proviso to the effect that its provisions should not be applicable in case the election was set aside. It is contended, however, that the word "defeated" shows that the legislature did not contemplate an election that was set aside. It would be contrary to the rules of interpretation hereinbefore announced, to adopt such a construction. If the legislature had contemplated that the word "defeated" might be so construed, it is only reasonable to suppose that it would have used language that would have made their intention certain and definite. It seems to have been the intention of the legislature merely to enact in statutory form the provisions of the Constitution, and not to make any additions to those therein found, which it must be presumed to have known was beyond its powers. There is no case in the State decisive of the question involved. Several decisions have been cited from other States, but, of course, they are not authority in this State. There is, however, a provision in our Constitution which makes this case different from those just mentioned. Section 29, art. I of the Constitution, is as follows:

"The provisions of the Constitution shall be taken, deemed and construed to be mandatory, * * * and not merely directory, except where expressly made directory or permissory by its own terms."

Therefore, when the Constitution provides that an election upon the question of forming the same proposed new county shall not be held oftener than once in four years, no department of the government has the authority to allow more than one election, which would unquestionably defeat the plain intention of the Constitution.

For these reasons, I dissent.