The Anderson intelligencer. [volume] (Anderson Court House, S.C.) 1860-1914, 1878-01-31

scribed by that Instrument in express
terms, the one by ballot and the other by
the visd vecs system. iyTt ss aikewise
equslIy certain that these modes of voting
differ in one, ut least, most essential par
tieniar, the one implying secrecy, the
other involving publicity, and, as mattsr
of history, we know that the respective
merits of these two essentially different
modes of voting have been, and Ira yet,
the subject Of discussion in every country
where the right Of suffrage exists. Does
the constitution then prescribe that
either of these modes of voting shall be
adopted in the election OF q Circuit
Judge2 and Ii SO, which OF them Is so
prescribedf To answer this question We
naturally turn to the fourth article of the
constitution, styled the Judicial Depart
ment," and la section 13 of that article
We find Ii ordained in explicit terms, that
"for each circuit judge shall be elected
by Joint ballot Of the General, Assembly, -
Now, if this section etood alone, L pro-
sumo it could not be doubted that the
only copstitu ional mode of electing a
Circuit Judge would be by ballot But
it is said.that in section "a, of article 2,
it is ordained that Gin dN elections by the
General Assembly, or either house there.
of, the members shall vote viua voce, and
their votes thus given shall be entered
upon the journals of the house to which
they respectively belong" and that it is
necessary to put construction upon the
word ballot as used in section 1S, of arti-
Gle 4, different from its primary and we'll
recognized Specification, in order that the
two sections may be brought into harmo-
ny upon the well recognized principle,
that in constituting an instrument like q
constitution, we. must look at it as a
whole, and SO construe its several parts
as will prevent conflict and bring about
harmony; and that for this purpose, If IL
should become necessary, words aud phrases
may be read in sense different from
their usual and primary aignifieaticn. It
is, therefore, contended that the word
ballot, rs there used, signifies simply the
act Of voting, and is not designed to pre-
scribe the mode of voting, and hence that
the two sections, thus read together, pre-
scribe that the Circuit Judges shalf be
elected by the General Assembly, the two
branches voting in joint assembly, but
that the mode in which the voting is to
DO done must be by the vipa voce system,
and not by ballot. 1t is. very obvious
that the word ballot is not used in this
secondary seuse anywhere. else in the
constitution, for tho only other place in
which Te haze been able TO find it il in
the first section of the eighth article
'In all elections by the people, the cleo
tors shall vote by ballot'- there it is
undoubtedly used in its proper and legit-
innate sense, as no one will, for moment,
contend that, in any election by the peo-
pie, the electors would be st liberty to
adopt the s':ya voce sysieu.. Now, while
it,may be admitted that, in a proper case,
1t is allowable, in constituting q constitu-
ton, TO attribute secondary signifcations
to words and phrases, differing materially
from their usual and proper meaning, il
order to prevent conflict betweo,, the
different parts of such an instrument, yet
this should not be done when such con-
flict can be avoided in, more natural
and proper way, especially when, as we
have seen, the rule contended for involves
the necessity of giving "a word of we'll
defined meaning not only different sig
nifications, in different parts of the Same
instrument, but Specification practically
the very Opposite Of it's original and usual
meaning. Let us inquire, then, whether
this apparent conflict between these two
sections of the constitution cannot be
reconciled in more natural and proper
way than by distorting the meaning of q
well defined term, and attributing to the
trainers of the constitution 2uch gross
carelessness and inattention to their du-
ties as using the word ballot in ons Sec
tion in its proper and legitimate sense,
and in another section in an opposite
sense; for certainly voting by ballot and
by. the viva Uoce system are, for all prauti-
n hn 1f
each other. There is no doubt of the
correctness of the rule that where general
terms, no matter how comprehensive
they may be, used in will, a statute or
Q constitution, are apparently in conflict
with subsequent special provisions, sucl.
conflict may be avoided by regarding the
latter as exceptions TO the former, and
that for this purpose courts will read the
two clauses as if words of exception were
inserted. Applying this principle, then,
to the two clauses under consideration,
| there is NO res, conHict. and they may be
read together as providing that in all
| elections by the General Assembly the
| membe-s shall vote viUo voce, &C., except
in the election of Circuit Judge, IN
which case they shall vote by Ballot.
The fact that shis is not the only instance
in the constitution in which this mode OF
reconciiing an apparent conflict between
different sections becomes necessary, In
dicates the pr0priety of adopting 1t rath-
er than the one co0.ended for by defen.
tdants counsel. in at least one other in.
stance thefc IS ain apparent conflict be-
t"c On other sections Of the constitution
which can only be reconciled upon the
] principle which We have adopted in this
! / ca1e. In action 10 of article a Il is or
dained that the election for all State off.
cers shall be held at the eanA time an is
provided for that of members of the Gen.
eral Assembly. 1t is very manifest that
In order to avoid q conflict with Other
sections of the constitution, this section
must be :ead in connection with such
other aections, by Incorporating words o.
exception, G. q. except suehiias are re-
| quired 80 be electsd by the General AS
sembly. 1t does seem, therefore, that the
correct view to take of the two sections
of the constitution which give rise 10 tht
controversy sn this case .(section "a O
article 2,.and section 13 of article ~ is Il
regard the former es simply declaring {
general rule for the guidance of the Gen
eyal Assembly, to which the latter flrn
ishes an exception, and that while, as
rule, the Uiud uoce system was to be thi
! innda nf vntine in elactinna hv the Cnr
eral'AsRambly, yet, ,,ithat, in case of th,
election of Circuit Judge, an exception
w.. e5tEs5, requifipg ti1atsuch elec
ton should be by -bhllo. This 4iew /
sustained by references to the journal o
the convention which framed the consti
tuition, to which we are.at liberty to refe
= Il