State ex rel. Wallace v. Hayne , 1876 S.C. LEXIS 119 ( 1876 )

Their Honors the Justices of the Court delivered, seriatim, oral opinions as follows:

Moses, C. J.

This case is an application upon suggestion filed by leave of the Court in the name of the State, at the relation of William H. Wallace, claiming to be the Speaker of the House of Representatives of. the State of South Carolina, against H. E. Hayne, as Secretary of State, and E. W. M. Mackey.

The petition sets forth that a general election was held in said State on the seventh day of November, A. D. 1876, for the offices of Governor and Lieutenant Governor of South Carolina, and upon such election the returns were duly transmitted to the said H. E. Hayne, as Secretary of State, in accordance with the provisions of the Constitution and laws of the State.

This allegation is admitted by respondents.

The petitioner alleges that the House of Representatives convened in the city of Columbia on the fourth Tuesday in November, and, after convening, duly organized and elected him, William H. Wallace, Speaker, and notified the Senate; that the petitioner, as such Speaker, thereupon demanded of the said H. E. Hayne, Secretary of State, the returns of the election for Governor and Lieutenant Governor; that the Secretary of State refused to deliver said returns to the petitioner, and still refuses, and has unlawfully delivered said returns to one E. W. M. Mackey, claiming to be Speaker of a body claiming to be a House of Representatives which is not legally elected or organized; and petitioner prays that a writ of mandamus issue directed to H. E. Hayne, as Secretary of State, and E. W. M. Mackey, commanding and enjoining them forthwith to deliver to the petitioner, as Speaker of the House of Representatives, the returns of the Managers of Election transmitted to him upon the election, and for further or other relief.

On this suggestion the Court granted an order that H. E. Hayne, Secretary of State, and E. W. M. Mackey, show cause on the 4th of December instant, why the prayer and suggestion of the petition should not be granted.

The pleadings, evidence and arguments of the counsel having been submitted to the Court, we now proceed to deliver our decision and judgment.

As to the jurisdiction of the Court, the exercise of which has been objected to on the part of the respondents, the Court feels no doubt at all that it has power under the Constitution, Section 4 of Article IV:

“The Supreme Court shall have appellate jurisdiction only in cases of chancery, and shall constitute a Court for correction of errors at law, under such regulations as the General Assembly may by law prescribe: Provided, The Court shall always have power to issue writs of injunction, mandamus, quo warranto, habeas corpus, and such other original remedial writs as may be necessary to give it a general supervisory control of all other Courts in the State.”

Now, according to the view of the learned counsel for the respondents, the power of the Court as to those writs, under Section 4, Article IV, of the Constitution, is limited to control, by our supervision, over all other Courts in this State. The mere reading of this Section is enough, I trust, to convince the learned counsel that his interpretation of the Section is not well founded. The writ of injunction may be exercised not to control other Courts, but it acts directly upon parties, and no form of an injunction that I can think of could prohibit the proceedings of a Court of inferior jurisdiction. The great writ of mandamus stands upon a different footing. It may be addressed to another Court; it may control the exercise of an assumed power by another Court, ánd, in that view, may be said to supervise. But quo warranto is never used in the supervision of another Court; it is directly an issue between two persons, both claiming an office. So, too, the great writ of habeas corpus mentioned in this Section'. How can that writ issue to supervise or correct the errors of a Court of inferior jurisdiction ? It is a great writ of privilege, interposing the shield of the law over the body of the prisoner. This great writ of right and liberty acts only upon the person, and never can act upon the Court. To show that the view which we entertain of the said Section is consistent with the end designed by the framers of the Constitution, and that the exercise of this power was to continue as it existed at common law at the time of the adoption of that instrument, they went further and gave to this Court the power to issue “such other original and remedial writs as may be necessary to give it general supervisory control.” For instance, the writ of eertiorári and every other writ which was requisite to bring into this Court the proceedings of an inferior tribunal, that its action might be supervised by this Court. So much for the objection in that particular.

Then it is alleged that this Court has not jurisdiction over H. E. Hayne, one of the executive officers of the State, because, according to the limitations of the Constitution, the powers of the government are vested in three distinct bodies, neither one of which can exercise any control over another. That may be conceded to the fullest extent, and yet what would become of the rights of the citizen, vested in him not only by the common law but by the statutes, if there was no control over the executive department of the government? The Treasurer is a part of the executive department, and yet more than one case may be found where this Court has interposed to compel him to perform duties specially required of him by law. And so of the other officers. It is not an encroachment upon the duties of their particular departments. This Court does not undertake to say to them that “ we are to perform the duties assigned by law to you.” It does no more than say you must perform the specific duties assigned to you by law where you have not the privilege of exercising discretion; that is all. The mandamus could not compel the Governor to issue a pardon to a man; that would be an encroachment on his prerogative. But to say that the judicial department of the government, where a citizen avers that his right has been infringed upon by an executive officer, could not interfere, as, for example, when the Legislature had appropriated a certain sum of money to be paid to him, and the Treasurer refuses, is startling. Where would the judiciary be? Where would the other departments be? The judiciary would sink into mere insignificance. The other departments might increase in bulk and wield their powers to such an extent that the whole liberties of the people might be entirely destroyed. The Court has previously decided this point in the same way. It was only out of respect to the learned counsel from abroad that it permitted it to be again argued.

The question is whether Mr. Wallace, has established in this Court his right, by reason of holding under the Constitution the office of Speaker of the House of Representatives, to the possession of the returns of the election for Governor and Lieutenant Governor, filed with the Secretary of State. We do not feel it incumbent upon us either to inquire or determine if Mackey, one of the respondents in this case, is the Speaker of a legally-constituted House of Representatives of the State of South Carolina. We do not consider that inquiry necessary to the judgment demanded in this case. The Court holds that Mr. Wallace is the Speaker of a legally-constituted House of Representatives of South Carolina, and therefore has such a status here as not only authorizes but requires the Court to hear and determine the matters set forth in the suggestion. It has been made to appear, by evidence, that of the constitutional number, 124, of which the House shall consist, sixty-three members were in their seats when Mr. Wallace was elected. The constitutional requisition having been thus complied with, there was present the necessary “ quorum to do business.” This is no new question. It was decided by this Court on a day when everything was calm and serene; when the political atmosphere was pure; when there was no excitement in the country as unfortunately prevails now. In the case of Morton, Bliss & Co. vs. The Comptroller General, (reported in 4 S. C.,) it was held that to constitute a House of Representatives there must be a majority of the number which the Constitution requires to make a House, and that is 124, in the proportion of members to the respective Counties as fixed by the Constitution. Now it is contended that there was not sufficient evidence of the right to membership on the part of the gentlemen constituting the number of sixty-three to entitle them to the floor in the organization of the House. As we understand it, from the proof in the case, and it is conceded by .the respondents, all the members- had certificates from the Secretary of State except eight, and the qualifications of those eight were established by the proceedings in this Court. No matter what was the character of the certificates, they had the return of the Board of State Canvassers to this Court showing that they had received the greatest number of votes iu their particular Counties, which entitled them to access to the floor, for the purpose of organization.

• The return made to this Court by the Board of State Canvassers shows the name'of every candidate in every County and the number of votes he received, and therefore the names of those who received the highest number in their respective Counties. The Court then required that the Board of State Cauvassers should make a report in conformity to that return. Instead of performing that duty they adjourned sine die, possibly with the view in that way of avoiding the performance of the duty imposed upon them by the law, but more especially brought to their notice by the order of the highest Court of the State of South Carolina.

The law cannot be evaded in that way. We must at least preserve our civilization and maintain .the due enforcement of the laws according to the judgment of those upon whom the Constitution has imposed the duty and responsibility of interpreting them. Unfortunately, in every case there will be differences of opinion; but we think that when a clearer day conies in the political horizon than the present, the whole people of'South Carolina will unite in saying the law must be obeyed. Peace and prosperity can never be the reward of the people until every man knows that his first duty is not only to submit to the law but to lend his moral influence to their proper enforcement.

So much of the prayer of the petition as asks for a mandamus against Mr. Mackey must necessarily be dismissed. There cannot be two Speakers of the House of Representatives in South Carolina, and Mr. Mackey stands in the position, so far as appears by the testimony and in the view of the Court, as a private citizen, against whom mandamus cannot issue.

In regard to Hayne, the Court considers that another important question is-involved iu it, and will order a further hearing at some future day.

It is therefore ordered and adjudged that the said W. H. Wallace is the legal Speaker of the lawfully-constituted House of Representatives of the State of South Carolina, and, as such officer, was and is entitled to the possession of the returns of the election for Governor and Lieutenant Governor held on the seventh day of November, A. D. 1876, and which were transmitted to H. E. Hayne, Secretary of State; but it appearing that the said election returns have been unlawfully delivered by said H. E. Hayne, Secretary of State, to E. W. M. Mackey, one of the respondents, the question is reserved for further argument and consideration whether the writ of mandamus should now issue to said H. E. Hayne, Secretary of State.

It is further ordered and adjudged that the petition be dismissed as to E. W. M. Mackey.

Willard, A. J.

As this is a ease of very great magnitude, it would be proper to enunciate briefly the propositions upon which I concur with the action of the Court. The Supreme Court has constitutional jurisdiction in cases of mandamus; our jurisdiction is original and general. We have so construed the Constitution repeatedly, without objection to that jurisdiction having been raised before at this bar, although we repeatedly affirmed that to be under our jurisdiction. Mandamus issues whenever a public officer is called upon to perform a ministerial act of a specific character, and, on demand, has refused its performance. The question then arises whether the Secretary of State and E. W. M. Mackey occupy that position. Are the duties they are called upon to perform ministerial? Are they specific? Have they been called upon to perform them, and have they refused the performance? And the additional question whether Mackey is a public officer.

There can be no question as to the character of the duty of the Secretary of State. He is ordered to do a specific thing — to deliver certain papers to a certain person invested with the office of Speaker of the House of Representatives; that is clearly a ministerial act. We have rightfully defined a ministerial act to be one proceeding from a duty to do something which an individual or corporation has a right to demand should be done. The Speaker of the House of Representatives has a clear right to demand that the Secretary of State should transmit to him the papers in question. The Secretary of State, being a public officer, charged with this specific ministerial duty, is bound to perform it, and, refusing it, he may be compelled by mandamus. The question which is raised is, is Wallace Speaker of the House of Representatives? It seems that the body over which he presides had the constitutional majority, provided the members from Edgefield and Laurens Counties were entitled to seats in that body. This is indisputable. I am satisfied that the provision of the Constitution that the House of Representatives shall consist of one hundred and twenty-four members is mandatory, and the House cannot obtain a constitutional organization without having a majority of that specific number of members participating in the organization. The question as to whether the members from Edgefield and Laurens were entitled to seats was rightly understood by counsel as depending upon the jurisdiction of this Court in mandamus. If this Court had power to command the Board of State Canvassers to declare the election of those members from Edgefield and Laurens Counties, then we think they are to be regarded as members of the House of Representatives. We permitted counsel to argue the question of our jurisdiction, not because we had any doubt, or could conceive of a possible doubt, but because this is a case of great importance, and the Court wished to hear everything that could be said upon the subject. We have no doubt about our jurisdiction to confine the Board of Canvassers within the limits of their proper jurisdiction — to say what the jurisdiction of that body is. We do not claim, nor have we ever exercised, nor do we intend to exercise, the right to control the discretion of any executive officer of Board whatever, nor to interfere with their discretion. We determined that they had a mere ministerial duty to perform as regards members of the Legislature. The provision of the Constitution making each house the judge of the election returns and qualifications of its own members.could leave nothing for the Board to do but the ministerial duty of certifying the results of the election as they appeared prima jade, and the Act of the Legislature itself has paid respect to the Constitution by withholding in terms from the Board of State Canvassers such powers when it is lodged in any other body. In the case under consideration it had been already lodged by the Constitution in the several houses of the General Assembly. The Court commanded that specific ministerial act to be performed. After the judgment was rendered from the bench, and before the writ of mandamus was issued, it appears from proceedings in that case, which are before us, that the Board undertook to make certain declarations in violation of their duty under the judgment of this Court. Under familiar principles, that action was null and void and could give no legal foundation to any legal action whatever. The members of the Legislature were then in the same position as if the Board had refused to make any declaration whatever after having been commanded by this Court, and I presume that there is no lawyer who will give fair consideration to this matter who will doubt that if, after judgment pronounced, the Board had. refused to make any declaration whatever, it would have been competent for the members elected under the statement of the Board made to this Court to take their seats without any certificates whatever, inasmuch as their action was abortive when they disobeyed the order of the Court. Technical restrictions are never to be applied in the vital stages of the organization of such a body. Red tape can never be allowed to tie up the organic powers of the government. It would be to attempt to carry matters of form proper to the minor transactions of life into those great matters which cannot be hampered by such things. I am fully in accord with the Court that the body which contained the constitutional number was the House over which Wallace presides. The one presided over by Mackey has no legal status whatever. Mackey is a private citizen and is subject to arrest and punishment. The criminal Courts of the country furnish the means of punishment. As to the Secretary of State, I fully concur in the views of the Court that the question whether a man-damos can go to him after he has parted with the papers should be fully argued at the bar.