The Charleston daily news. [volume] (Charleston, S.C.) 1865-1873, 1870-04-25

document. and omit the statement ol tue
general facts, which are already familiar 20 our
readers:
RETURN OF THE SECRETARY OF STATE.
The return Of the Secretary o! State sets Forth
that
'Ha e7os.ge 20 which the rei....'
which they seek to have restored, IS found, NOT IN
the act OF the General Assembly, out IN lhe eopy
thereof which was made in the once ol tlle res res
pondent after the act was passed by the two
houses II. said copy being what IS known as utG
"enrolied copy," TO which is appended me usuat
formula Of ratification.
BY concurrent resolution OF ne GeaeEni @niny rho
bly, the respondent was authorized 10 Gu e'P,oJ I'D en-
necessary clerks for enrolling inc anb,S aG,1 The
crossing the bills of the General Asselr2i AIranie, AZ
act referred TO was very long anu M pSr tor, anI
very late day OF the Sessryi Nssrvai was allowed within
which TO make the enrolled copy. In maSias M as Ine
enrolled copy from the original occulreu aI s tSa
word Bidckrilie, and In this form the said en-
rolled copy was ratified and approved. Mnet,. ~
er this error was :>.e result OF ac:iuea v,
procured by design, this respondent n csnnOt aI,a
undertake TO say. It had escaped tne at.en-
tion Of this respondent, aud would seem
Also 10 have escaped the attention OF Tue
Committee on Enrolled Acts Inc at!entlpn u .me
respondent was not drawn to the 1act eI tne error
until perhaps TWO weeks after the LEGISLATURE haa
This error had occurred IN connection with q mat.
between the TWO Houses. 1t was known 10 .he
respondent that the House had hnally receuea
from its position, and that the act had oeei llaiS
passed by the two Houses, hXng btacttt';e Us ,Me
place for holding the courts for Barnwei! county,
and in this form the respondent mad been directed
to have the same enrolled for RATIFICATION. a ,.,.,
Knowing, therefore, that the Wrtios o lne p,. m"u
Barnreu in the enrolled copy instead oi i'iacA,
vile, was :; clerical error, anu tnat tne acs' as
thus enrolled, was not IN conformity Win !ae aG.
as 1t had passed the General Assembly, auo as 1.
l,nn
assumed the responsibility of correcting me error
on the enrolled copy By erasng tnere,roM @ u Tue
word Barnwell and inserting the WORD biachVA!e'
as it appears IN the act ITSELF.
OPINION. ...
Whilst dfsclaiminc the imputation OF improper
motives on the part OF the Secretary OF STATE IN
making the erasure, the argument or the connsel
for the relators in denial OF his authority tnuS 10
spoliate an enrolled act Of the General AssemoiS
is clear and conclusive. That he was personaly
charged by inference, with the superrislon,ol Inc
clerical force employed in the work. OF enrol.
ment, seems to be an Indifferent matter. ~
ceased to have relation 70 his duties the moment
when the parchment was delivered TO the 'Com-
mittee on Enrolled Acts" 1t then becomes the
duty OF this committee TO see that the Will OF the
Legislature was therein truthfully expressed, anu
1t is theirs to bear the responsibility Of any dere
cton In this high and most important ounce. Ia
reference to enrolled acts, the law does not IN
terms prescribe any duty to be performed oy tne
Secretary Of State except that OF publication.
It has been the custom, however in this State, to
entrnst them to the custody Of his office for the
further purposes OF reference and saie6eeplng.
Beyond these me- tSan * 10 rse fe auta to
the orders Of his commander, or the CLERK 70 the
records Of the court Of highest resort.
The consideration OF this proposition, II IL can
be entertained with patience, Is simply IDLE; there
can be no doubt about It,. II was to avoid the re.
mote contingency Of spollation that the solemn
forms Of ratification were provided in the early
history OF Parliament, and have been win SO
much OF ceremony observed TO this day; forms
sufic.ent in themselves to suggest that writing
30 attested must be he'd sacred-not to be proianed
efs that made 1t, save as other laws are changed,
through the prescribed forms OF legislation.
BLACK. Conn.,. 1851 The discretion to alter Word,
whatever the motive, implies the right to alter
paragraph or section, or, indeed, to blot .rom
the statute book the whole body OF our laws.
Among thestatutes Of our State. instances ol
clerical error IN enrolment will he found-errors
Yhies We're denounced by the people upon Wnom
they. worked hardship and fraud; eut which
whilst they were cured by measure OF repeal. rt-
malned as they were written, untoicaei.. Sucn
errors may again occur: yet whatever OF wrong
may thereby ensue, bears no comparison 10 tnas
which surrenders solemny ratified act OF the
Legislature to the discretion however wise. OF
any authority whatever, by mere dash OF the
pen;to make the laws and put IN jeopardy the
Bnt IL does not follow from the conclusion that
the WIZ musIissue. To make this plain, It Is ne
cessary TO cite authority, In definition 0! ts pro-
cess, and OF the rules which contrel tne court IN
the exercise OF this high and extraordinary pre-
rogatiye.
considerable portion OF tho opinion IS taken
ND In discussion OF the power, anu causes "
issue writ OF EldndanllS
The Governor himself being conpellable no
perform an act clearly Defined ana e1yotIeu Og
hu,t which Is "early mtn'ster.oa IN iss ns'aIv, nr
alternative" See Moses on Mandamus, 63, '3,S2,
and cases there cited.
TWO WRONGS DO NOT MAKE ONE RIGHT.
1t was urged by the respondent that 1t did not
pertain to the Issue involved to determine the pro-
priery Of his conduct In making the erasure anu anu
contrary. his misconduct in this regard furnishes
the ground on which must reluse thG Wru. IL
was not his official duty TO do the spolauon; oy
necessary consequences II Is not his oncial out!
to restore the eraSure: and the court cannot ny
nandam,ls command it TO be done. That lie
touched ID with his pen was wrong. IL IS a nome.
The erasure whilst it remains, cannot reach the
integrity OF the act: lit has not the erect 10 aes'
troy It's character or legal effect" Greene EX:,
$685. The facts OF this investigation being level.
oped the law, iflaw 1t be, continues presumed TO
be lodged In every mans mind already.
THE GIVING or The CERTIFICATE.
We come to the second proposition ia the rule-
that the secretary he required to give 20 the rea
tors certified copy cl the act as II was enroiie,
ratified and approved and placed IN MS oiice. IN
determining tnS, | pass by the consideration oil
the danger iavolved by the precedent Of requiring
m officer TO certify from memory paper not IN
existence as we'll as the consideration thas the
writ, ir granted, would be nuga;ory and unaraii-
ing Whether the REALTORS have the legal right 10
have the certificate demanded depends upon the
declarative proposition whether the granting OF
it Is clearly defined ministerial duty ol the Office
OF the Secretary of State. This determined atilr-
matvely, il must be ascertaaed whether, IN the
sound legal discretion o! the court, inc thing de-
manded would he 'consonant with right, justice,
and good government"
In the Constitution. Art. 3, Sec. e3. IL Is prov..
de that the duties OF the Secretary VI S.ie shallc
be prescribed by law. In the Statutes various
duties are cnjoincd. but, so far rs my research
has gone, nothing In this point. We dad. how
ever, in Petigrus Code, page 81, note, taat ":he
dates OF the Secretary OF State are 10 DC inferred
from the fees which are allowed hni. and lrs,m
the penalties for official MISCONDUCT and tie
law provides for this office O fee per cupy-snttt
for the copying of any writing, aud also Tee Tor
s,a testimonial with the great seal vi the state"
If the Law nroyided by speci2.. enactment Tor 'he
Secretary:s custody OF the enrolled acts l woaid
regard Ii as an inference that he should. upon re-
quest, give TO any party tninterest cer'ned copy
OF any act on ne, upon tender Of such ices. AS IL
Is, the cas,ls ofliSSLs is one OF the Legislature;
and, so far as this court Is concerned, whatever
may be- In morals, the duty OF TIE secretary COZ
seuIent upon hts consent TO keep custody u the
records renders the duty, in It's legal character,
not clearly defined and doubtful; and because the
right as TO the certificate Is doubtful, and the
corresponding duty not clearly defined, the writ
based upon the second requirement OF the rue
must also be denied. Pit, 291.
This conclusion would be entertained Win
something or hesltancy II 1t were not fortified uy