The Charleston daily news. [volume] (Charleston, S.C.) 1865-1873, 1868-12-23

| by the statute they were shut up in their dc
| cision to the simple declaration OF the cleo
| tion-a declaration OF who had received The
| highest number Of votes. -, :,
The counsel for respondents have admitted
| that naandamus will lie in this case, ana
| would call attention 10 the importance OF tnls
admission. If m,dnda1nnS will he, IL VIII De
because the act which we seek to nave Fer-
formed is q ministerial act and counsei, i pS
| their admission have admitted that the decla-
ration of tho election is a ministerial act
which this court can compel. The case is
| therefore reduced to q narrow issue. LII Is
simply this What is meant by declaring an
| election
Mr.. Chamberlain contended that without
doing violence to the plain import oflanguaGe,
no other construction could be placed upon the
phrase s'declare the election" except that they
were % declare who had received the hlehest
number of votes. To declare the election void,
and to call this q declaration of the election,
was to do violence to plain language: he next
called attention to The significance OF the words
of the statute ssbinding upon all parties"
This, he contended, meant no more than tnat
| thelr decision should be authoritative. 1t
should confer legal right on the party de,
clared to beelected to proceed to qualify, anu
to enter upon the duties of his Office. suppose,
| he said, that the Board OF Aldermen mad oe-
clared that the candidate having the smaiiess
number of votes was elected, would such de-
cision be final? No. all the power that the
statute intended to confer upon the Aldermen
| was simply to declare upon such evidence as
was submitted to them who appeared to nave
the highest number of votes, leaving the ques-
ton of the validity or non-valldlty OF the elee-
ton for the decision of some tribunal whlch
possessed that power. To declare that trl-
bunal constituted as the Board OF Aldermen
vas-of parties interested, OF parties prsJu-
diced. of parties affected by fear, favor or IN
terest-to say that their decision, whatever It
might be, however grossly and palpaDly wrong
and unjust, was still to be final, and beyond
reach Of any other tribunal, was to do violence
to the lowest estimate OF the intelligence OF the
T,eeislature. However that may be, he said,
by the constitution OF this State the Supreme
Court has supervisory control over oil other
)urts OF the State. Constitution OF the State,
Article ~, Section A.
Nothing can be clearer than that it is be-
yond the power of the Legislature to consti-
tute any tribunal whose decisions shall not be
subject to the reviewing and controlling power
Of this court.
We say that the Board of Aldermen decided
wrongfully and overstepped their jurisdiction
in setting aside the election: But u they had
simply declared the election, if they had
declared certain parties duly elected, their
verdict in that case would also have been
renewable by this court. No matter what
their decision might have been. whether they
had acted within their jurisdiction or without
their jurisdiction, they were still, by the ex-
press terms of the constitution, subject to the
supervisory control Of this court.
MIR. Chamberlain next proceeded to say that
it was true that nlanddnauS will not lie to cou-
troll the discretion Of the inferior tribunals.
But the law makes distinction between the
ministerial functions and the judicial functions
of judicial tribunals. Although tribunal may
be Judicial, yet many Of its acts are purely
ministerial. The signing of q judgment, tho
certifying of q record. the reinstatine Of case
Improperly dismissed, we're all ministerial acts,
for the non-p n-performance Of which the courts
had decided that mQndanluS was proper
remedy. To compel judgment when the in
terior court undertakes to grant new trial,
when it has no power to do 50, IS one OF the nu-
merous cases in which ndnddn,us had been
granted to compel the performance of minis
terial duty of judicial tribuna'.
MIR. Chamberlain here cited Moses on man.
danaus, pages 29, IS and 4S; also People VS..
Cortelyou, 81 Barb, 164 He next proceeded
to examine the South Carolina decisions in
cases analogous to the present, and cited 5th
Richardson, 299, acts OF 1889; first Bay, ~,
whore the courts had held that nlandamus
would lie 10 correct the abuses OF power by in
-ferior tribunals.
He examined the case of Grier vs.. Shackel-
ford, Sd Brevard, 491, in which the court had
decided that the decision OF the Managers of
Election, under the old law, was final and con-
elusive, and called especial attention to the Ian
guage Of former statutes. by those statutes,
the managers wore empowered to hear and
determine" contested cases without appeal.
This, he said, was much broader power than
had been granted to thu Acting Board of AL
derlnen by the present statute: Yet even IN
and Judge Mott had delivered dissenting
opinion, in which the court held that the
supervisory control o. the superior court even
in that case could not be DESTROYED by implica-
ton; that this power was one derived from the
common law, even in the absence of statutory
provisions.
MIR. Chamberlain further cited 1st McCord
50, where the decision of the manag ,rs was
held to be conclusive on all points legally SUBJ
mitted to them. He contended that this case
fell far short Of sustaining the action of the
Acting Board Of Aldermen.
The question Of tho validity Of the election
had net been legally submitted to them. 1t
was beyond their jurisdiction and however
conclusive their decision might be In declaring
the election, they had no power to go beyond
that, and any decision which has been pro-
nounced upon the validity OF the election was
q matter not legally submitted to them.
He next examined Cockerall's case, I'd Rich
ardson, 9th page, where the decision OF the
managers was declared to be final on questions
of fact, but the court had intimated clearly
that upon questions of law their decision
might not be regarded as final He also cited
lat McMullen, 4e5, where it is said that the
power Of setting aside m election is the '.ju-
dicial province" The conclusion OF an exanl-
ination Of South Carolina cases Tas that no
precedent could be found justifying the action
Of the Board Of Aldermen in assuming to sot
aside an election.
The counsel then addressed himself to the
question of the legal effect Of dispensing with
the oath inserted in the present statute. He
argued that this oath was clearly unconstitu-
tional and void Constitution, page g. article
s. sections 2and 8; Bill OF Rights, section 81.
The constitution declared that all persons OF
lawful age, citizens OF the United States, re-
siding in this State at the adoption of the con-
sttution, April 16, 1868, were qualified to vote
in all elections by the people. This oath re-
quired voters to swear that they had resided
in this State for one year. 1t was an iHfrac-
tion of the constitution, distinct abridsmont
of the right Of suffrage, and, from its repug-
nance to the constitutions guarantee OF suf-
rage, must be set aside as void.
Counsel for respondents had contended that
this oath was nothing more than simple reg
ulatiou Of suffrage, and not an abridgement OF
it. But in reply he cited 18th Blckering 4S5,
and Bellinger, 305, 306, where the courts had
held that mere regulations for the orderly con-
duct of elections, and tor proving the quall6ca-
tions of voters, if they did not abridge the
constitutional rights of voters. were lawful and
proper. This oath did abridge the right OF
suffrage. 1t was not regulation, but denial
of suffrage to many whose residence in this
State had not existed for one year.
He next took notice of the irregularities in
the conduct Of the election which had been set