Ex parte Scarborough , 34 S.C. 13 ( 1891 )

.The opinion of the court was delivered by

Mr. Justice McIver.

This petition was filed in, and addressed to, this court in the exercise of its original jurisdiction, praying that a writ of mandamus might issue, directed to the Board of State Carivassers, ‘-commanding them to make and subscribe the proper statement, certifying therein that the petitioner had received the greatest number of votes for the office of State senator from Sumter County, and deliver the same to the secretary of State.”

1 It appears from the papers before us that the County Board of Canvassers for Sumter County, after canvassing the votes of the county given at the recent general election, made a statement thereof, showing, amongst other things, that the petitioner had received the greatest number of votes for senator, and transmitted the same, together with the protest of the opposing candidate, H. F. Abbott, to the Board of State Canvassers, who reversed the decision of the County Board and decided that the said II. F. Abbott had received the greatest number of votes for the office in question. If the Board of State Canvassers, in reach- ■ ing their conclusion and rendering their decision,'acted as judicial officers, then it is well settled that the writ prayed for cannot issue; for while this writ may be issued to compel a judicial officer to act, it cannot be used as a writ of error to correct any supposed incorrect action. This doctrine is too well established to need the citation of any authority to support it.

2 The sole question, then, presented for decision is, whether the Board of State Canvassers, in a matter of this kind, act as judicial officers. Under the law as it was originally enacted, and as construed in the case of Ex parte Mackey (15 S. C., 322), it might have been claimed that in passing upon an election for a member of the State senate, the duties of the Board of State Canvassers were merely ministerial, for by the terms of the original statute they were only invested with powrnr “to decide all cases under protestor contest that may arise, when the power to do so does not by the constitution reside in some other bodyand as the constitution does invest each branch of the general assembly with the power to judge of the election returns and qualifications of its owrn members, the inference was that the Board of State Canvassers was not invested with any judicial powers to decide upon a protest or contest of an election for either branch of the general assembly of this State or for Congress.

But the law has been amended by the act of 5th of July, 1882 (17 Stat., 1172), expressly investing the Board of State Canvassers with judicial power in all cases under protest or contest. The language of that act is as follows: “All County. Boards of Canvassers, whether for State or federal elections, shall have the power, and it is made their duty, as judicial officers, to decide all cases under protest or contest that may arise, subject to appeal to the Board of State Canvassers, who shall also sit and act in all such matters as judicial officers.” In view of this explicit declaration of the law-making power, we do not see how it is possible to escape the conclusion that the Board of State Canvassers having acted as judicial officers in this matter, their action cannot be reviewed or revised .by mandamus.

3 It is scarcely necessary to add that the power thus vested in the Board of State Canvassers to decide as judicial officers who, in a given case, has received the largest number of ' votes for the office of State senator, is, of course, subject to the power vested in the senate by the Constitution (art. II., sec. 14) to judge of the election returns and qualifications of its own members.

For these reasons the order dismissing the petition has already - been entered.