State Ex Rel. Whisonant v. Belue

August 20, 1926. The opinion of the Court was delivered by At a municipal election held in the town of Blacksburg in March, 1921, the following officers were duly elected and qualified: Mayor, J.F. Belue; aldermen, D.P. Smith, Henry Jacumin, R.A. Putnam, and J.H. Rhyne. They held office under their commissions for two years and "until their successors shall have been elected and qualified."

In March, 1923, another election was held, at which there were two opposing tickets in the field. Upon one the candidates were: For mayor, J.F. Belue, for aldermen, D.P. Smith, Henry Jacumin, Ed. Turner, and E.L. Jones. It will be noted that Putnam and Rhyne of the old council were not candidates for re-election, Turner and Jones taking their places. Upon the other ticket the candidates were: For mayor, C.W. Whisonant; for aldermen, N.H. Moss, J.P. London, Wm. Gaffney, and Tom Cobb.

The election was held on March 27, 1923 at which 263 votes were cast. The managers of the election reported to the council that the vote for mayor was: Belue, 178; Whisonant, 85 (the Belue candidates for aldermen receiving practically the same votes). On the following morning after the election, Belue, Jacumin, and Smith, who were members of the old council and candidates for re-election, met and declared the election according to the report submitted to them by the managers of the election. It appears, however, that none of the candidates upon the Belue ticket qualified, owing to charges of serious irregularities in the election, and the old council, consisting of Belue, Jacumin, Smith, Putnam, and Rhyne, have been holding over under their commissions following the election in March, 1921, with the exception of Rhyne, who has removed from the state.

On April 7, 1923, the candidates upon the Whisonant ticket instituted an action against the members of the old council, by summons and complaint, setting forth in detail the grounds upon which they alleged that the election in March preceding was "illegal, fraudulent, and void," and that the defendants, the old council, have illegally usurped and unlawfully hold the offices of mayor and aldermen. The prayer of the complaint is that the defendants show cause before the Court why their action in reference to the election should not be "rescinded, reversed, and evidence taken concerning the same," that they be enjoined from transacting any municipal business pending a decision, and that all papers and documents referring to the election be turned over to the clerk of Court.

Upon the same day (April 7, 1923), the plaintiffs obtained an order from his Honor Judge Johnson of the Circuit Court, requiring the defendants to show cause before him at chambers at Spartanburg, on April 12, 1923, why the election of March 27, 1923, should not be declared null and void for irregularity and fraud. The defendants appeared at the appointed time and place, and among other objections contended that the action was one under Section 779 (Code Civ. Proc., 1922), a quo warranto proceeding, and that the Court had no jurisdiction at chambers, particularly outside of Cherokee county, to hear and determine it. His Honor overruled the objection, and considering the complaint as a petition for certiorari, on April 24, 1923, filed his decree in which he adjudged that the election be declared fraudulent, null, and void. Upon appeal to this Court, in an opinion filed February 7, 1924 (127 S.C. 483; 121 S.E., 360), it was held that the proceeding was an action (presumablyquo warranto), which could be tried only in Cherokee county. The decree was reversed, and the case was remanded to Cherokee county for trial.

In the meantime the defendants had served an answer and a demurrer to the complaint. In their answer they assert the validity of the election; they demurred upon the grounds that, considered as a quo warranto proceeding, the plaintiffs had not obtained permission of a Circuit Judge and that it should have been brought in the name of the state.

At March term, 1924, after the remittitur in the former appeal had been sent down, the case up before his Honor Judge Shipp, presiding judge, at Gaffney. By agreement it was marked "Heard" and set for argument before him at Spartanburg. On March 27th it was argued, and, at a later date (the order in the transcript is not dated), he filed an order sustaining the demurrer of the defendants, but granting plaintiff's permission, nunc pro tunc, to bring the action and allowing the plaintiffs to amend the summons and complaint by making the state the party plaintiff ex rel. the plaintiffs, the Whisonant candidates. He then ordered a reference before W.W. Lewis, Esq., who took a mass of testimony and filed his report dated July 2, 1924, sustaining the charges of illegality and fraud in the election, recommending that a new election be ordered, and finding that the defendants were usurping the offices of mayor and aldermen.

Upon exceptions to the referee's report, the matter came up before his Honor Judge De Vore, presiding judge, at Gaffney, during the fall term, 1924. He filed a decree dated December 24, 1924, in which he confirmed the referee's report as to fraud, but held:

"I am of opinion that defendants are lawfully in office, as they do not claim under the last election, which is null and void, but under the previous one, when they were duly elected, and are holding over until their successors are duly elected and qualified, which has not been done, nor could it be done as no election has been held since they were duly elected."

He further decreed:

"I cannot, however, agree with defendants' contention that this Court cannot order another or new election to be held. The section that defendants (plaintiffs?) rely on is: ``In every case judgment shall be rendered upon the rights of the defendant and also upon the rights of the party alleged to be entitled, or only upon the rights of the defendant, as justiceshall require.' The last words underscored open a broad field and empower the Court to do what is just and right in the premises, and I think justice requires a new order or another election to be held." — which he accordingly ordered, the machinery therefor to be put in motion within five days. From this order the defendants gave notice of intention to appeal on December 26, 1924.

Early in January, 1925, the plaintiffs procured an order from his Honor Judge Bonham, then presiding in the Seventh circuit, requiring the defendants to show cause before him at chambers at Spartanburg, on January 19th, why they should not be attached for contempt of Court, in not obeying the order of his Honor, Judge De Vore, dated December 24, 1924, requiring them to put in motion the necessary machinery for a new election.

The defendants appeared at the time and place appointed and filed a return to the rule, in which they contended: (1) That no copies of the affidavits upon which the rule was issued had been served upon them; (2) that his Honor had no jurisdiction in contempt proceedings outside the county of Cherokee where all of the defendants resided; (3) that notice of intention to appeal from the order of his Honor Judge DeVore, dated December 24, 1924, acted as supersedeas. His Honor Judge Bonham overruled all of the objections of the defendants, adjudged them in contempt, and imposed a fine of $1 upon each. He, however, ordered that further proceedings under the order of his Honor Judge De Vore, dated December 24, 1924, be suspended pending the determination of the defendants' appeal from the order. Let the order of his Honor Judge Bonham be reported (correcting the date of his Honor Judge De Vore's order therein referred to: December 24, 1924, and not December 22, 1925).

Upon the filing of this order, the defendants gave notice of intention to appeal, and deposited the amount of the fines with the clerk of court, pending the appeal and subject to the order of the Court. Thereafter the defendants moved before his Honor Judge Bonham for an order rescinding his contempt order and staying the execution of it pending the appeal therefrom. The motion was refused.

The appeal from Judge Shipp's order:

The exceptions assigning error in this order are overruled, for the reasons given by Judge Shipp in his order.

The appeal from Judge De Vore's order:

The referee found as a fact that the election was so permeated with fraud as to render it absolutely void; his report in this respect was confirmed by the decree of his Honor Judge De Vore; no exception has been taken to that finding. The persons declared elected in the election of March, 1923, have obviously concurred in that conclusion, as none of them have qualified, although declared elected, and the old council have been holding over under their commissions following the election of March, 1921; the decree of his Honor Judge De Vore so holds, and there has been filed no exception thereto upon this point. This is conclusive upon the merits of the action as a proceeding inquo warranto; the action being against the members of the old council. The question of difficulty is whether or not his Honor Judge De Vore had the authority to order a new election. If this had been a contest between the persons who had been declared elected under the election of March, 1923, and those who were contesting that result and claimed the offices, there might have been some ground for sustaining the action of his Honor, Judge DeVore, though we doubt it; but, in a quo warranto proceeding against the members of the old council, holding over, the sole question at issue was whether they were usurping the offices, and that has been decided in the negative. In as much as the time has passed for the succeeding election in March, 1925, the question would be academic but for the order of his Honor, Judge Bonham, holding the defendants in contempt for not obeying the decree of his Honor Judge De Vore ordering a new election. It becomes necessary, therefore, to consider the validity of that portion of Judge De Vore's decree. As above indicated, the invalidity of the decree upon the point under discussion might well be sustained upon the ground that the proceeding being against the hold-over council, the only question at issue sue was their alleged usurpation of the offices, which the decree was determined did not exist.

Another insuperable objection to the validity of the order in this respect, is that at least two of the members of the new council, who were declared elected, are not parties to this proceeding, and upon the question of ordering a new election, they are entitled to be heard.

But, assuming that the proceeding had been a contest between the alleged new council and the Whisonant ticket, who claimed to have been elected, the Court would have had the right, under Section 783 of the Code of Civ. Proc., 1922, to have determined, if such had been the fact, that the Whisonant ticket had been elected and were entitled to the offices, if such had been within the purview of the proceeding. But the complaint does not ask this; it asks only that the election be declared void, and this has been determined in their favor, from which there has been no appeal. With the annulment of the election the rights of both factions under it disappear.

The effect of the annulment of the election was to declare that vacancies existed in the several offices. The ordering of a new election was the assumption of power in the Court to fill the vacancies thus created, for which we find no authority in the law. It became the statutory duty of the hold-over council, immediately upon the declaration of the annulment of the election, to fill the vacancies as provided for in Section 4540, Vol. 3, Code of 1922, and, if it had been brought to the attention of the Court in a proper proceeding that they refused or neglected to perform this plain ministerial duty, they could have been compelled by mandamus to do so. We find no statutory authority for the issuance of what was practically a writ of mandamus requiring the council to perform a statutory duty before they had refused or neglected to do so.

For the reason stated in the discussion of the appeal from the order of his Honor, Judge Bonham, however, the question of the invalidity of the order of his Honor Judge De Vore, is completely academic.

The appeal from Judge Bonham's order:

It appears that after the order of his Honor, Judge Bonham was passed the defendants paid to the clerk of court the fines imposed. The "case" states:

"Upon the filing of the order of Judge Bonham, the defendants gave notice of intention to appeal and deposited the amount of the fines with the clerk of court pending the appeal and subject to the order of the Court."

Under the case of Batesburg v. Mitchell, 58 S.C. 564;37 S.E., 36, they had lost the right to appeal from that order. The syllabus is:

"A defendant convicted by town council of violation of municipal ordinance cannot appeal from the judgment and sentence of town council, after paying under protest fine imposed."

See also, extended note 18 A.L.R., 864.

We feel constrained to say that the attitude of those of the defendants, who were candidates for re-election, deserves the severest condemnation of this Court. The election, according to the facts found by the Referee confirmed by the decree of his Honor Judge De Vore, and unappealed from, was reeking with the most disgusting fraud; exactly whose does not appear except by strong inference. They were willing to accept the fruits of that fraud, and voted to ratify the report of the managers of election. The character of the election became by investigation, doubtless appreciated before, so malodorous that they adopted the subterfuge of repudiating what they had done, refusing to qualify under the new election, and holding on to the offices under their old commissions. They knew that, if the election was void for fraud the only ground which justified their refusal to qualify, that vacancies in the offices were thereby created which they were called upon to occupy under their old commissions until a new election could be had and their successors qualified, which under the law it was their duty to provide for; yet for two years, notwithstanding earnest demands and the order of the Court, which was at least suggestive and persuasive, they have defied the law and their plain duty, and by inexcusable tactics have accomplished their nefarious and threatened design to hold on to the offices until a new election shall have rendered the question academic.

The judgment of this Court is that the appeals from the several orders referred to be dismissed.

MR. CHIEF JUSTICE GARY, and MESSRS. JUSTICES WATTS, BLEASE, and STABLER, concur.