The Charleston daily news. [volume] (Charleston, S.C.) 1865-1873, 1869-01-09
THE CONTESTED ELECTION.
DECISION OF TIE SUPREME COURT.
Opinion Of Justices willard and HoSe
and Separate Opinion of Chief
Justice Moses.

COLUMBIA, January Z, 1S69-At the opening
Of the Supreme Court, this morning, Chic
Justice Moses announced that Mr.. Justice vii
lard would deliver the opinion of the court IL
the case of Gilbert Pillsbury and others agains
tie Acting Board of Aldermen of the City o
Charleston.
Judge Willard then delivered tue opinion o.
the court, at the conclusion Of which reading
the Chief Justice announced that Mr. Justice
Hoge concurred in that opinion.
1t is believed that the peremptory writ o.
,nandamus will issue Immediately.
The following is the.oldnion OF the court:
Acting Board of Aldermen Of the City OF Charles
ton. Supreme Court. November Term, 1858. Mo-
ton for Peremptory Mandamus
OPINION.
WILLARD, 1.-The REALTORS claim to have been
elected to fill tho respective offices OF Mayor
and Aldermen of the City Of Charleston, at an
election held on tho 10th day OF November last,
under the act '.to provide for the election o.
the officers of the Incorporated cities and
towns Of the State of South Carolina" ratified
Septomber 25, 1868. Especial session, 1868. p
1867 They allege that said election has been
contested, as to majority of the persons vo-
| ted for; that thereupon the returns. together
with the ballots, were examined, and the case
investigated by the respondents, who there:
upon did declare as foI,ws. "Tho said board
do declare that there has, been no legal
and valid election, and that no persons
have been duly elected to- the office
of Mayor and Aldermen of the City OF
| Charleston ut said election" Realtors claim
that by law respondents are bound to declare
the results of the election, and had no authori-
ty to declare it void; that they have demanded
of the respondents compliance with their legal
duty, which has been refused. They pray writ
of naandan,us to compel respondents to per-
form their legal duty in the premises.
An alternative writ issued accordingly, COM
mmdinp the respondents to declare said cleo
lion and allow said relators to enter upon their
several and respective offices, or that they ap-
pear and show cause for their refusal 30 to do.
Respondents have returned to said writ Two
grounds of noncompliance Herewith. The
frat ia that in virtue Of authority vested in
them by law MS Judges Of elections. they have
odiudoed said election to be illegal and void;
| and that such decision is final and conclu-
siyc. and binding on all parties. The second
| is. that Ilegaltics and informalit!cs were COM
mitted at such election, and in the returns
thereof, and that fraudulent votes were cast
| in excess OF the majorlties appearing III behalf
ceurt. if not bound by the decision made by
the respondents, mrst from the facts arrive as
the same conclusion, namely, that the election
is illegal and VOID. s.,
AZ 10 the matters embraced in the ttrs,
ground, the REALTORS have demurred; and as to
the second ground, have moved to STRIKE out
TINT portion OF the return as immaterlal and
Irrelevant. The question for decision arises
on the construction OF the following clause Of
the fifth section OF the act also named, Which
is as follows: "The Managers Of Elections
shall decide contested cases, subject to the
ultimate decision of the Board OF Aldermen
or Wardens when organized, except when
the election of majority OF the persons
ytted for are contested, or the managers
are charged with illegal conduct, in which case
the returns, together with the ballots, shall be
examined, and the case investigated By The Act
ing Board of Aldermen, who shall declare the
election. and their decision shall be binding
upon all parties" 1t appears that the elections
of "a majority OF the persons voted tor" are
contested, and also that illegal conduct was
charp ed against the managers. The question
is whether the determination and decision OF
the Acting Board is in conformity with and in
full discharge OF their duty in the premises.
Two acts are required OF them: Fsrs'. To ex-
anime the returns and investigate the case.
Second 10 declare the election. The first has
been performed, aud no question IS made
about IT. Inc second Is tue supJecS VI uno
present contest.
Examine the powers of the respon-
dents by the terms under which they
ave delegated, and no difficulty either
of construction or Interpretation presents
itself. An election is the joint act Of
oil legally qualified electors choosing to
participate in it. It consists OF the express non
OF choice as to the matter acted upon, which
is, in legal consideration, q secret act OK the
o,l ra9nt
choice in conformity with the law under which
the election is held. which is tue act OF the
officers conducting the election. The officers
nerformlne this duty are here termed mana
gers. According to the present law, their de-
cisions may be reviewed in some cases by the
new board OF aldermen OF Wardens, aud III
others before tho old board. In tue present
case tile old board acts. Tho dccnratioa pre-
supposcs scrutiny of the votes. and is COM
pleteJ by q return getting fortl the whole num-
Der of votes given for each candidate, ana
when there has been Y choice, IN conformity TO
law, by furnishing the prevailing candidate
with suitable evidence Of his election. The
foregoing ia tho general nature OF tho duty
imposed upon the respondents by the terms OF
the statute. and If it is to be regarded as the
limit cf their powers, it IS evident that they
have not acted in strict conformity thcrewith;
on the contrary, while admitting tho existence
of an election in fact, they refuse to declare
the same, alleging as inc Rrounu tuctolor Il"v
it was illegal aud void.
The RESPONDENTS claim that by proper con-
structiou of the statute, III connection with
the former election laws, it will appear that
they havo more enlarged powers, and are COM
pctont to adjudge the ilicsaIlty of the election.
1t is unQuesllonably true that, under the tor
mer election laws, the mana ,ers OF elections
possessed, by the express terms OF the law,
such powers as are here contelded fo'; Dut Il
is ot clear how that can assist the respondents,
who act under much mor5 restricted grant
of authority. Thc powers in question: are the
creatures OF the statute, aud we arc noC at ND
erty to Gull from statutes passed at u!11erent
periods and under widely varying clrcumstan-
ces in order To Increase their efficiency anu
symmetry. Ii the torms OF the statute are to
be enlarged it must he i'll conformity Win the
principles governing legal construction, and
because something is imputed IN those terms
by q necessary, or, al the least, By Il Teasona-
bio implication. That which is drawn afscr
the statute by necessary Implication IS us
much part Of i; as that which Is expressed
in terms. Where ii subject matter Is Dameu
all things directly apiiertainS to It arr lIcitla-
ed BY necessary implication. Whole an act Is
required 10 be performed. whatever constitutes
9 necessary or ordinary neaus to lis perform
aucc, is in like manner included. The queS-
ton III all these cases is. not whether he mat
,cr OF implication Will add 10 the value and Ell
ficiency OF what is conferred i'll terms, bnl
whether without it the statute Will be Wholly
or in part imperative. Applying h.sc test
10 the case in hand, VIC have no Difficulty IN
discovering that the powers granted aud those
sought to be addal by way OF implication arc