Hunter v. Senn

The opinion of the Court was delivered by

Mr. Justice Pope.

This is a proceeding in the original jurisdiction of this Court, wherein the petitioners, as citizens of the town of Prosperity, in the county of Newberry and State of South Carolina, seek a perpetual injunction to issue out of this Court, whereby the respondents, who compose the county board of control for Newberry 'County, in said State, under the dispensary law of this State, may be enjoined and restrained from proceeding any further in the location of a dispensary in the town of Prosperity, in said county and State, and the appointment of the dispenser therefor, under the election held, or attempted to be held, at Prosperity, in said State, upon the question of “Dispensary” or “No Dispensary,” on the 8th day of October, 1900. The grounds for such relief as set out in the petition herein are about as follows:

I. That the petitioners are freeholders and citizens of the town of Prosperity, in the county of Newberry, in the said State, which is a corporation under the laws of the State.

II. That the respondents are the members composing the board of control of the county of Newberry, holding such office under, and owing their official position to, the act of the General Assembly of this State of South Carolina, approved on the 24th day of December, 1892, and the amendments thereto, which said act and amendments are known as the dispensary law. That among the various duties and powers of the said members of the said hoard of control is the appointment of dispensers and the location of dispensaries within the said county.

III. That by the said dispensary law, it is provided, among other things: “That any county, town or city wherein the sale of intoxicating liquors was prohibited by law prior to July 1st, 1893, may secure the establishment of a dispensary within its borders in the following manner: Upon petition signed by one-fourth of the qualified voters of such county, town or city wishing a dispensary therein being filed with the county supervisor, town or c-ity council, respectively, they shall order an election submitting the question of ‘Dispensary’ or ‘No Dispensary’ to the qualified voters of such county, town or city, which election shall be conducted as other special elections; and if a majority of the ballots cast be found and declared to be for dispensary, then a dispensary may be established in said county, town or city.”

IV. That by an act passed by the General Assembly of this State, approved the 4th day of February, A. D. 1882, the sale of all intoxicating liquors in the town of Prosperity was prohibited within the limits of the said town.

“V. That on the 4th day of September, 1900, the town council (consisting of George Y. Hunter, as intendant, A. H. Hawkins, W. W. Wheeler, S. S. Birge and B. B. Schumpert, as wardens, of the said town of Prosperity) was called together and at said meeting a petition was presented by the said intendant, purporting to be signed by one-fourth of the qualified voters of said town, and asking for an 'election upon the question of ‘Dispensary’ or ‘No Dispensary;’ that it was never determined by said council whether or not there was one-fourth of the qualified voters of said town signers of said petition; but on the contrary this important essential was assumed and taken for granted by the said council, without ascertaining this fact as under the law they were bound to do, ere any action on said petition could' be taken; that, besides this, there were three of the members of said council, viz: George Y. Hunter, intendant, and W. W. Wheeler and A. H. Hawkins, wardens, as signers of said petition; that at said meeting of the said council, the petitioners herein, together with Rev. J. W. Blanton and Rev. W. H. Airiail and Mr. W. P. B. Harmon, by a protest in writing signed by all of them, solemnly objected to the said George Y. Hunter, as intendant, and W. W. Wheeler and A. H. Hawkins, as wardens, taking any action upon the said' petition, upon the ground that the said intendant and wardens were interested parties and could not pass judicially upon a matter to which they were parties; and they objected further to the remaining two members of said council considering the petition, upon the ground that they would not constitute a quorum, the other three being disqualified by interest and being parties themselves; that in spite of said protest and objection, the said intendant and wardens acted upon their own petition, and attempted to grant the same by passing an ordinance calling said election; that said ordinance was null and void for the reasons 'heretofore given, and for the additional reasons: 1st. It was provided by said ordinance that ‘only voters registered as. hereinafter required shall be entitled to vote in said election,’ whereas it is provided by sec. 24 óf an act approved1 March 5th, 1896, after providing for municipal registration ninety days before every regular election, further provided that ‘such registration shall be used for all special elections in the municipality until ninety days preceding the next regular election.’ 2d. If such special registration was necessary, then said ordinance failed to appoint a supervisor thereof; while on the contrary, the registration was permitted to be done by one who had been supervisor of registration at the last regular election, but who was appointed by ordinance, nor was 'he ever thereafter appointed either by the intendant, who alone under the said section of the act of 1896 could appoint such supervisor of registration. 3d. iSaid ordinance was further fatally defective, in that provision was made that said election should1 be conducted as other special elections. That said attempted election was not conducted as other special elections: xst. In that no form of ballot was provided or used, but on the contrary every voter was allowed to use just any kind of a ballot, ranging from the margin of a newspaper to brown wrapping paper, and of all shapes and sizes. 2d. In that the managers of said election allowed non-residents and disqualified' voters to vote in such numbers that a majority of the so-called ballots were in favor of the dispensary; which result would not have been if these non-residents and disqualified voters had) not been allowed to vote. 3d. In that the purported return was never canvassed by the said council, nor was the result ever declared; nor was any record or minutes ever kept which show anything as to the returns and results. That on all other occasions when the question of the dispensary was up, the petitions asking for an election was always filed with the clerk of the said! council, but on this occasion this was not done, but on the contrary the same was kept private and was not placed where the public could see it and inspect it.

“VI. That the said respondents, taking the result of said attempted and illegal election as a decision of the question of ‘Dispensary’ or ‘No Dispensary,’ are now undertaking to locate a dispensary within the said town of Prosperity, and to appoint a dispenser therefor; all of which will fully appear' by reference to the advertisement hereto annexed, marked exhibit ‘A,’ and made a part of this petition; and the said respondents will locate said dispensary' within said town and appoint a dispenser therefor, unless they are restrained.

“VII. That on the 3d day of August, 1899, an election, attempted to be ordered by the said town council of the said town of Prosperity, S. C., was attempted to be held upon the question of increasing the corporate limts of the said town; that no petition of ‘a majority of the freeholders of territory’ sought and attempted to be annexed was ever ‘submitted to said council,’ nor, indeed, was any petition whatever ‘submitted to said council, praying for an election to be ordered ho see .if such territory should be included in said town;’ that at such said attempted election, the said council attempted to appoint the managers both for the territory attempted to be annexed and for the said town, but one of the managers thus attempted to be appointed for the said, territory was not a qualified voter of the State of 'South 'Carolina; and of the managers attempted, as aforesaid, to- be appointed by the council for the said town, only one served during the entire time the polls were open, while one never served at all, and the other only a part of the time, and after 12 o’clock he left on the train for Laurens, S. C., leaving only one manager at the poll's; that the said manager left at the polls .went of his own accord' and called in some one to assist him; that the one so called' was never attempted to be appointed, nor was he ever appointed manager for the said election, nor was he ever sworn in as a manager; that the said manager and this person afterwards as aforesaid called to his assistance, conducted the said' election and counted the votes attempted to be cast at said election, and made out what purported or attempted to be a return, but the same was not even dated nor sworn to, nor was the return from the said territory dated or sworn to; and the return attempted as aforesaid to be made from the polls within the said town were only signed by one manager appointed as aforesaid by the said council; that when these purported returns came before the said council, no action by the council thereon was ever taken or had; nor were any results of the said election ever declared or published, as required by law; that the said1 territory was not then, and has not been since then, declared ‘part of said town;’ that enough votes in this said territory, attempted as aforesaid to be annexed to the said town, were allowed to be cast in the said ‘Dispensary’ or ‘No Dispensary’ election to give a small majority in favor of the said dispensary; that by the ordinance which- the said council enacted calling for said election, it was provided that the managers appointed by said ordinance should make a sworn return of the votes cast at the two polls; that no such return was ever made or filed with said council; that if a special registration is necessary at special elections as was provided for in the case of the said dispensary election, then said ordinance was fatally defective, in that no provision was made for a special registration; and if it was necessary to have such special registration in the case of a special election upon the dispensary question, then it was necessary to have a special registration upon the question of annexing territory to the limits of said town; but if it was not necessary for an election held on 3d of August, 1899, upon the annexation question, to have a special registration, then it was not necessary in election held on the 8th of October, 1900, upon the dispensary question, to have a special registration; in either event, there has occurred a fatal defect, and the results are void and are vitiated thereby.

“VIII. That both the said elections are void and vitiated for the further reason, sec. 29 of the said act, approved March 5th, 1896, was not complied with, for the supervisor of registration did not furnish the said managers with the book of registration for the said town, and the said managers, therefore, did not know who was a qualified voter or who was not a qualified voter.

“IX. That the foregoing facts are fully substantiated and shown by the annexed affidavit of A. M. Lester, as. clerk of the town council, which said affidavit is marked exhibit ‘B,’ and is made a part of this petition.

“Wherefore, the petitioner prays: That the said respondents may be perpetually enjoined and restrained from proceeding any further with the location of the said dispensary at Prosperity and the appointment of the dispenser therefor, under the said election upon the said question of ‘Dispensary’ or ‘No Dispensary,’ attempted to be held within the said town on the 8th of October, 1900. That they may have such other relief as may be right and equitable.”

To this petition the respondents first demurred, and the demurrer being overruled, then answered, wherein they admitted the first two paragraphs of the petition, and also that by the act of 1882, the town of Prosperity was declared a town wherein intoxicating liquors should not be sold, but the respondents vigorously denied all the remaining allegations of fact, and joined issue as to all conclusions of law. These issues of fact caused this Court to pass an order, wherein Ellis G. Graydon, Esq., was appointed special referee, and directed' to hear the testimony and’ afterwards submit to this Court his impressions as to such issues of fact. In April last, the special referee submitted all the testimony, together with a very able report, and in his report he found all the facts against the petitioners. We direct that this report (but not the testimony) be included in the report of this case.

We have very carefully examined this report and the testimony taken 'before the special referee, and from- that examination we agree with the impressions made upon his mind thereby. We could content ourselves with simply adopting the findings of fact by the referee andl applying the law thereto. But we have no doubt the petitioners would1 feel better satisfied to see from our opinion that we 'had gone carefully over each of their propositions in the light of the law and the testimony — hence we do so, giving as a preface the legislative history of the town of Prosperity.

The village of Pr-og Level was incorporated in December, 1851. 'See p. 114, 12 vol. Stat. at Large. The village of Prog Level was incorporated as the town of Prog Level in March, 1872. See 15 vol. Stat. at Large, pp. 89 and 90, with the same powers and privleges as town of Mann-ng, 14 Stat. at Large, 674. The town of Prog Level became the town of Prosperity on 22 February, 1873. See 15 Stat. at Large, 365. The sale of liquors was forbidden in town of Prosperity on 3d February, 1882. See 17 Stat. at Large, 774. Its status as to the sale of liquors remained until 8th October, 1900. This seems to explain the zeal with which the petitioners in this proceeding have pressed their opposition to the sale of liquors in such town- of Prosperity, even in a dispensary there to be located.

The objections urged by the petitioners seem to divide themselves into two groups: First. That the election held on the 8th October, 1900, was invalid, because the laws governing elections in municipalities of the State were violated. Second. That such election was rendered invalid because the territory which was annexed to the town- of Prosperity in the year 1899, never legally became incorporated in salid town, and, therefore, the participation of the legal voters residing within the annexed' territory in the election held on 8th October, 1900,‘on the question of “Dispensary” or “No Dispensary,” was illegal and rendered such election invalid. We will -consider these matters in their order.

As to the first, it is proper to remark that an objection was taken that the ordinance passed by the town of Prosperity, in the month of September, 1900, providing for the election on 8th October, 1900, on the question of “Dispensary” or “No Dispensary,” failed to have the seal of the town th-ereon. The 6th section of the act incorporating the town of Manning allowed such town to use a seal, and required that all ordinances passed by it shall have such seal affixed to them. See 675 p. of act, as found in 14 St at. at Large. Hence, as the town of Prosperity was given the same powers as the town of Manning, the seal of the town of Prosperity should be affixed to any ordinance passed by the latter. An examination of the testimony shows that the ordinance in question of the town of Prosperity did have the seal of said town affixed thereto. Therefore, this objection must be overruled.

1 Again, it is urged that the requirements of section 7 of act in regard to dispensaries, found at page 129 of 22 Stat. at Large, were not complied with in conducting the election held on the 8th October, 1900, on the question of “Dispensary” or “No Dispensary.” The language there employed is as follows-: “Sec. 7. * * * Provided, however, That any county, town or city wherein the sale of alcoholic liquors was prohibited by law prior to July 1, 1893, may secure the establishment of a dispensary within its borders in the following manner: Upon petition signed by one-fourth of the qualified voters of such county, town or city wishing a dispensary therein being filed with the county supervisor or town or city -council respectively, they shall order an election submitting the question of ‘Dispensary’ or ‘No Dispensary’ to the qualified voters of such county, town or city, which election shall be conducted) as other special elections; and if a majority of the ballots shall be found and declared to be for a dispensary, then a dispensary may be established in said count}', town or city.” And it is claimed by the petitioners that inasmuch as certain citizens of said town of Prosperity protested to its town council that inasmuch as Dr. G. Y. Hunter, who was intendant, and A. H. Hawkins- and W. W. Wheeler, who were wardens of said town of Prosperity, had signed the petition for the establishment of a dispensary in said town, being a majority of said town council, they were not competent to pass upon such petition to determine if one-fourth of the qualified voters of said town had signed said petition; and that if said three did not act thereon, the remaining two were not a majority of the council and could not act as a legal council. It is sufficient to say that each one of these three gentlemen were property owners in said town, were registered voters of said town, and were not declared incompetent to discharge their official duties as involved in their membership of said town council; but from every standpoint, there was a one-fourth of the qualified voters of said town who signed such petition, excluding the intendant and two wardens who had! signed the petition. So this objection must be overruled.

2 Again, it is suggested that the book of registration was not turned over to the managers who conducted such special election. No doubt, a part of section 29 of an act entitled “An act to provide for the registration of all electors in this State qualified to vote, in State, county, municipal, congressional and presidential elections,” 22 Stat. at Large, 47, does require the municipal supervisor of registration to turn over to the managers of special elections his books or book of registration before an election is held, but ther-e is no provision in the section, or any other part of the act in question, which will rendler such election invalid, because the supervisor did not discharge his duty. In effect, the supervisor (municipal) did do this when he filed a list of the qualified electors with such managers. However'that may be, this same section (29) provides: “and no elector shall be allowed to vote in any municipal election whose name is not registered as herein provided, or who does not produce a municipal registration ticket at the polls.” The managers at this special election swear that no person was allowed to vote at such election held on the 8th of October, 1900, unless he produced his municipal registration ticket. This upsets this objection.

3 Again, it is urged that the ballots cast were written upon the blank margin of a newspaper in a few instances, or on wrapping paper in other instances, or on white paper in other instances, but that all such tickets were irregular in size. No one rises up to say even at this late day, that the wishes of the voter as to “Dispensary” or “No Dispensary” did not plainly appear from the writing put upon such tickets. There is no law which condemns the course pursued by the electors at this special municipal election. This objection is overruled.

4 Again, the petitioners claim that there was no declaration by the town council of the result of such election. It is true, the said section 7 of 22 Stat. at Large, p. 129, does contain the words “* * * and if a majority of the ballots cast be found and declared for the dispensary, then a dispensary may be established * * *” But the overwhelming weight of the testimony here adduced shows that the managers and the intendant and wardens of the town council, in writing, certified to the result of the balloting. This is a declaration of the result. This objection is overruled.

5 And, again, it is contended by the petitioners that the registration of the qualified voters should not have been made immediately preceding the special 'election held on the 8th day of October, 1900, but that the registration made for the last general election in such town of Prosperity, for the officers of intendant and wardens should have governed, and that this special registration renders the election void. There can be no question that the act governing registration of voters, even in special' elections in the municipalities of this State at section 24 (pages 45 and 46 of 22 Stat. at Large), does provide: “Sec. 24. Ninety days before the holding of a regular election in any incorporated city or town in this State, after the general election of 1896, the mayor or intendant thereof shall appoint one discreet individual, who is a qualified elector of such municipadlity, as supervisor of registration for such city or town, whose duty it shall be to register all qualified' electors within the limits of the incorporated city or town. The names of all qualified electors of such municipality shall be entered in a book of registration which, at least one week before the election and immediately after holding of the election, shall be filed in the office of the clerk or recorder of such city or town, and shall be a public record open to the inspection of any citizen at all times. Such registration shall be used for all special elections in the municipality until ninety days preceding the next regular election * * Immediately preceding any municipal election to be held in any incorporated city or town m this State, the supervisor or supervisors of registration (as tlie case may be) shall prepare for the use of the managers of election of each polling precinct in such city or town a registration book or books for each polling precinct in said city or town, containing the names of all electors entitled to vote in such polling precinct at said election.” In sec. 26 of this act it is provided as an indispensable prerequisite for registration in a municipality, that the applicant shall present a certificate of registration from the board or supervisor of registration of the county wherein the municipality is located, “and the production of such certificate, together with proof of 'his residence within the municipality for four months preceding- such election, and the payment of all taxes assessed against him due and collectible for the previous fiscal year,” shall entitle the applicant to registration. The act regulating registration is intended to carry into practical operation the provisions of the Constitution of 1895 regulating t'he same. A summary of the terms of the latter on the subject, so far as municipal registration of voters is concerned, is as follows: First. A county board! registration certificate of registration of the elector must be produced. Second. Residence for four months before the election in the town or city in which he desires to vote must exist. Third. The payment of all taxes due and collectible for the preceding fiscal year must appear to have been made by the applicant for registration. Fourth. “The General Assembly shall provide for the registration of all voters before each election in municipalities” (see art. II., sec. 12, of Constitution, of the year 1895). It would seem, therefore, from a comparison of the terms of the act regulating registration with those of the Constitution just quoted, that the General Assembly has, of its own motion and not in obedience to any mandate of the Constitution, provided an additional requirement, viz: that registration of qualified voters in municipalities must be had only for what may be called regular as contradistinguished' from special elections, in order for them to be allowed to vote on any question submitted at a special election. In the case at bar, there is no contention as to the fact that every voter, who offered to vote and did actually vote at this special election held on the 8th day of October, 1900, had in his possession a certificate of registration issued to him by the county board of registration; that he also had paid his taxes for the preceding fiscal year, and that he had resided in the town of Prosperity for more than four months preceding the said special election; and' also, that he bore a registration ticket issued by the supervisor of registration of the town of Prosperity. These things being true, this objection must be overruled.

6 We wili next consider the second group of exceptions, relating as 'they dto to the alleged illegality of the votes cast by persons who resided in the territory annexed to the town of Prosperity 's the result of the special election held on 3d of Augfist, in the year 1899. It is not denied that the town of Prosperity had the power, under the laws of this State, to annex the adjoining territory, but petitioners deny that such laws were complied with at the special elections therefor held 3d! day of August, in the year 1899, in these particulars, to wit: 1. That no petition of the •majority of the freeholders of the territory sought to be annexed was ever presented' to the town council of Prosperity. 2. That no petition was submitted) to such council, praying for an election to determine the question of such annexation. 3. That the town council of Prosperity appointed the managers to conduct such special election both in the territory proposed for annexation and also in the town of Prosperity, and that one of the managers of the territory proposed to be annexed was not a qualified voter of this State, and further, that of the three managers of the election box in said town, one did not serve at all, one served only a part of the time in which 'said election was to be 'held, and one served the entire time; and that the last named manager, of his own accord, called another citizen, who was not appointed for that purpose by the town council, to assist him in conducting such election, and that th&se two counted the votes and made the return of such election, which was not sworn to, nor was it .dated; that the return of the managers of the box in the territory proposed to be annexed was not sworn to and dated. 4. That when the returns from the two' said boxes came before the said town council of Prosperty, no action was taken by it thereon, and no declaration was made or published as required by law. 5. That said territory was not then, nor has it since been, declared a part of said town. 6. That at the special election held'on the 8th October, 1900, on the question of “Dispensary” or “No Dispensary,” that enough votes from this territory attempted to be annexed were cast to give a small majority in favor of the said dispensary. 7. That no registration of voters for the special election held on the 3d August, 1899, was ordered or was made, and, therefore, if no special registration was required for the special election on 3d August, 1899, then no special registration was required by law for the election held on the 8th October, 1900, on the question of “Dispensary” or “No Dispensary.”

Let us now consider these questions in their order. We remark just here that the legislation pertaining to the power of a town to extend its corporate limits may be found at pages 459 and 460 of the 22d vol. of Stat. at Large of this State. Sec. 1 of such act is as follows: “Sec. 1. Any town or city council shall have power to extend! the corporate limits of said city’or town in the following manner: A petition shall first be submitted to said council by a majority of the freeholders of the territory which it is proposed to annex praying that an election be ordered to see if such territory shall be included in said town. The said town council shall order an election after not less than ten days public advertisement. At such election the qualified electors of the municipality shall vote at the usual voting precincts thereof, in a box'provided for that purpose, and the qualified electors of the territory proposed to be annexed shall vote in a separate box to be provided for that purpose within the territory proposed to be annexed. If a majority of the votes cast by the qualified electors of the town and of the territory proposed to be annexed, each aggregated separately, shall be in favor of annexation, or if neither give a majority against annexation, then the council shall publish the result of said election, and declare the annexed territory a part of said town * * * Any town increasing its territory shall file a notice with the secretary of State, describing its new boundaries.”

The first and second questions presented cannot be sustained, because the facts established are incompatible with the action taken. The very statute just above quoted shows that these very requirements lay at the very threshold of the action to be taken by the town council of Prosperity, in order to annex this additional territory. That these papers are now lost or mislaid cannot, at this late day and in this proceeding, affect these matters. They are, therefore, overruled.

As to the third ground, it may be said that while the language of the statute in question does not in terms direct the said council to make the appointment of managers to hold the election in the territory proposed to be annexed, by implication such duty is laid upon the said town council, for it is to the said council the petition is to be presented. But even if this appointment of said managers was not lodged with said council, the voters of said annexed territory may be said to have adopted as their act these appointments made by the said council. Hence this objection is overruled. The facts, as testified to, show that the action of the managers in the town of Prosperity in conducting said election was entirely proper and regular.

The fourth objection is negatived by the facts in testimony, for as a result of said elections, the town council of Prosperity had the action taken by the voters sent to the secretary of State, and this action 'by it was a declaration of the result of said election, and these views dispose of the fifth ground of objection also. These objections are overruled.

As to the sixth objection, it will be overruled because the voters in the territory annexed to the town of Prosperity having been made a part of said municipality, had as much right to vote as any other qualified electors of said town.

7 In overruling the seventh objection we will say that the act under which the annexation was made did not require a special registration of the voters residing in the said annexed territory. They were to be “qualified electors.” The managers determined this fact in favor of those persons voting at said election. No appeal was taken therefrom. It is now too late to raise such question, though we are bound to say that if such objection or appeal had been taken, it ought to have been overruled, under the facts here produced.

It is, therefore, the judgment of this Court, that the petition be dismissed and the restraining orders heretofore made be vacated. Inasmuch as this Court appointed Ellis G. Graydon, Esq., as special referee, to hear and report upon the testimony as to the facts in controversy between the petitioners and the respondents, and we haVe been advised that his compensation for such services may be in question, we leave, this question open.