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

ANDERSON, S. c.. TH
voting, not only provided for, but pre-
scribed by that instrument in express
terms, the one by ballotand the other by
the v5va voce. system. a9It is likewise
equally certain that these modes of voting
differ in one, at least, most essential par
ticular, the one implying secrecy, the
other involving publicity, and, as matter
of history, we know that the respective
merits of these two essentially different
modes of voting have been, and are 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 a Circuit
Judge? and 2if so, which of them is so
prescribed7 To answer this question we
naturally turn to the fourth article of the
constitution, styled the Judicial Depart
ment," aud in section 13 of that article
we find it ordained in explicit terms, that
"for each circuit judge shall be elected
by 1oint ballot of the Generah Assembly"
Now, if this section stood alone, 1 pre-
sumo it could not be doubted that the
only constitutional 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 all elections by the
General Assembly, or either house there:
of, the members shall vote viva 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 a construction upon the
word ballot as used in section 13, 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
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 1t
should become necessary, words aud phrases
may be read in a sense different from
their usual and primary signifcation: 1T
is, therefore, contended that the word
ballot, as 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 shall be
elected by the General Assembly, the two
branches voting in joint assembly, but
that the mode in which the votingiis to
be done must be by theviva voce system,
and not by ballot. 1t is. very obvious
that the word ballot is not used in this
secondary sense anywhere. else in the
constitution, for the only other place in
which we have been able to find it is in
the first section of the eighth article
.t'In all elections by the people, the cleo;
tors shall vote by ballot" and 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 at liberty to
adopt the viua voce system. Now, while
it,may be admitted that, in aproper case,
tits allowable, in constituting q constitu-
ton, to attribute secondary signifcations
to words and phrases, differing materially
from their usual and proper meaning, in
order to prevent conflict between the
different parts of such an instrument, yet
this should not be done when such con-
fict can be. avoided iinaa more natural
and proper way, especially wheh, as wef
have seen, the rule contended for involves!
the necessity of giving Ia word Of well.
defined meaning not only different sig-i
nifcations, in different parts of the same
instrument, but Specification practically
the very opposite Of its original and usual
meaning. Let us inquire, then, whether
this apparent conflict between these two
sections of the constitution cannot be
reconciled in a more natural and proper
way than by distorting the meaning Of a
well defined term, and attributing to theI
trainers of the constitution such gross
carelessness and inattention to- their du-7
ties as using the word ballot in one Sec
ton in its proper and Legitimate sense,
and in another section in. an opposite
sense; for certainly voting by ballot and
by the viva voce system are, for all prach-
cal purposes, precisely the opposites of
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, statute or
a constitution, are apparently in conflict
with subsequent special provisions, such
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. Applyingithis principle; then,
to the two clauses under considerations
there is no real conflict, and they may be
read together as providing that in all
elections by the General Assembly the
members shall vote viva voce, &C., except
in the election of a Circuit Judge, in
which case they shall vote by ballot.
The fact that this is not the only instance
in the constitution in which this mode of
reconciling an apparent conflict between
different sections becomes necessary, In
dicates the propriety of adopting it rath-
er than the one contended for by defen-
.dant's counsel. In at least one other in
stance there is an apparent conflict be-
tween other sections of the constitution,
which can only be reconciled upon the
principle which we have adopted in this
case. In section 10 of article IA it is Or
dained that the election for all State off.
GERS shall be held at the same time as is
provided for that of members of the Gen.
eral Assembly. 1t is very manifest that,
in order to avoid conflict with other
sections of the constitutions this section
must be read in connection with such
other sections, by Incorporating words of
exception, e. g. except such as are re-
quired to be elected 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 to the
controversy in this case .(section "a of
article 2,.and section 13 of article a is to
regard the former as simply declaring a
general rule for the guidance of the Cen