Smith v. Saye , Com'rs

While admitting the cogency of the reasoning upon which the leading opinion herein is based, which is to the effect that even though there be irregularities in an election, unless said irregularities affect the result or put the same in doubt, the election must be upheld, the respondent upon the reargument of this appeal vigorously challenged the accuracy of the various tabulations set out in the opinion of the Court. The respondent submitted that the number of alleged irregularly issued registration certificates could not be accurately determined, and especially that the number of alleged irregularly issued tax certificates could be determined with no accuracy whatsoever. A careful review of the testimony herein reveals the fact that a practically accurate count and checking of the registration certificates in question was made.

The showing as to the number of alleged irregularly issued tax certificates used as proof of the payment of taxes at the Rock Hill box is not so satisfactory. Mr. Neil, who issued these certificates kept no accurate count of their number as he issued them, due to the fact that he entirely relied upon the opinion of counsel that they were legal. When the matter was questioned he was naturally able only to give an estimate that he had issued not more than 100. He further stated that he might have said that he may have issued as many as 150. In the leading opinion of the Court his estimate of 100 certificates so issued is accepted, but the Court in its final analysis of the figures allows a count of 150. Inasmuch as this figure is the outside limit of any showing made by or on behalf of the respondents, the taking of this figure as a concession to the respondents in tabulating the whole vote would seem to be reasonable.

Inasmuch, however, as Mr. Neil further admitted in answer to the direct questions propounded to him that there was "no possible way now of telling the exact number of these certificates," it may be proper for the Court to determine the legality of the use of said certificates, and my preference is to do so.

The Constitution provides that managers of election shall require of each prospective voter "proof of the payment of all taxes." The production of a tax receipt or the certificate of the officer authorized to collect taxes is made "conclusive proof" of payment. Manifestly then a lesser degree of proof than absolute "conclusive proof" may be accepted by the managers.

In State ex rel. Davis v. State Board of Canvassers, 86 S.C. 451;68 S.E., 676, at certain election boxes the managers actually agreed not to require proof of the payment of taxes. After the election they testified that they knew the voters personally, and were satisfied that they had paid their taxes, and that they were informed that the sheriff had not been in the neighborhood to levy and collect tax executions, and that the inference was that all people in that community had paid their taxes. The Court upon this showing tersely ruled: "Such a palpable attempt at evasion of the law will not be tolerated."

The question then presented in the present inquiry is to find the mean between these two extremes.

In the present case it appears as uncontradicted that H.E. Neil had been treasurer of York County during 1922, when the taxes in question had been paid. He had collected said taxes, and either personally or by deputy had issued the certificates and made the entries on the tax books. Before the election Neil had been succeeded by W.D. Thomasson. With the acquiescence of Thomasson, the treasurer of the county, Neil, the ex-treasurer, took the tax books to Rock Hill. The managers of election made a formal ruling, embodied in a letter to Neil, to the effect that they would accept certificates issued by him to the voters as evidence of the payment of the taxes, or of the fact that no taxes were assessed against certain voters. Neil then, without any hint of partiality or discrimination, issued certificates, after actually consulting the tax books, which were then in his charge, to all voters who applied. In the decision of the Court in State v. State Board of Canvassers, supra, after condemning the "palpable attempt at evasion of the law," therein set out, the Court said:

"Just what proof of payment of taxes, other than the certificate or receipt of the officers authorized to collect taxes, which is made conclusive proof thereof, will satisfy the statute, it is not now necessary to decide. But when the Legislature used the word ``proof,' it meant legal and competent evidence, furnished by affidavit, or in some other legalform, and such as would satisfy a reasonable mind of thetruth."

A reasonable construction of this language and of the Constitution itself is that in the first instance (subject to review by the Courts, of course) the managers of election may pass upon the sufficiency of the proof presented, and if the same is in some proper legal form, which need not necessarily be so formal as an affidavit, that the same may be accepted if it is such as will reasonably satisfy the mind of the truth of the question under inquiry, viz.: the payment of taxes by the taxpayer. The managers of election at Rock Hill in this instance carefully considered the matter of requiring proof of the payment of taxes, and while they did not require the production of a tax receipt or of a certificate from the treasurer of York County himself, they carefully required what might be considered the next best evidence obtainable, viz.: a certificate signed under his approval by his predecessor in office who had actually collected the taxes, and who gained the knowledge expressed in his certificates from the books themselves.

The language quoted hereinbefore from the Davis Case is possibly a mere dictum of the Court, but its logic is irresistible.

In my opinion, under the Constitution and the reasoning of the Davis Case (while the practice of taking the tax book away from the treasurer's office may be exceedingly unwise, and should not be followed in future elections) the fact that the election managers at Rock Hill actually did adopt the course of procedure followed herein and actually did determine to accept Neil's certificates as evidence of the payment of taxes, would prevent the rejection of the votes presented, under the plan followed, unless the Court upon review could say that the evidence so acted upon was entirely illegal, and was not such as would satisfy a reasonable mind that the taxes had been paid. Manifestly, however, Neil's certificates could not be said to be so irregular as to merit, upon review, such a condemnation by the Court, and they certainly furnish convincing evidence of the payment of taxes. Hence the votes affected thereby could not, in my opinion, have been rejected.

Both for the reasons stated in the leading opinion of the Court herein, and for the reasons herein indicated, I concur in the reversal of the Circuit Decree.