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

Decision OF tho Supreme Court that Tn
Constitution Requires Joint Ballot q
the General Assembly in the Election q
In the Supreme Court-The State o
South Carolina againstaA. j. Shaw
Opinion by Haskell, a. J,
The question in this case is of the mos
serious character. It involves the con
struction of an important clause in th
constitution Of the State, and upon sucl
construction depends the title to one O
the highest and most honorable Offices i,
the gfit of the State. The court. i'm
pressed by the gravity as well as tn,
magnitude Of the matter which it ha
had under consideration, while there i
division of opinion, has nevertheless ar
rived at conclusion, concurred in by ,
majority Of its members. The opinion
of each Justice will be rendered sepa
rGteiy, and proceed to state some of tLt
reasons by which my mind has reached
that conclusion upon which the judgment
of the court is based.
The action is brought in the name o.
the State by the Attorney General, and
is against &. J. Shaw as occupant Of the
office of Judge of the Third Judicial Cir.
cult of the State, claiming to have been
elected thereto on the 18th day of Feb.
rnery, 1876. The second and third allie.
cations of the complaint, and upon which
the question: hinge, are as follows:
"2. That the constitution of the State
of South Carolina, article 4, section I3
provides that for each judicial circuit 4
Judge shall be elected by joint ballot OF
the General Assembly.
"3. That said A. j. Shaw was not alec.
ted Judge of the Third Judicial Circuii
by joint ballot Of the General Assembly,
as the constitution of the State REQUIRES
but was elected by the viva voce vote OF
the Senators and members of the House
of Representatives met in joint Assem-.
bly,"
In the answer of the defendant it is
alleged: ~ n ft&S { 4.55 EsG
THAT in accordance with the provi.
sions of the constitution of this State
section "a, article 2, and section II, arti.
Gle 4, he was elected to the office of Judge
of the Third Judicial Circuit on the 18th
day of February, A. D. 1875, by the Join!
vote of the General Assembly of South
Carolina, the members. thereof voting
viva voce, and tlieii votes thus given be.
ing entered upon the journal of the house
to which they respectively. belonged
and that by virtue Of said election lie
now holds and lawfully is in the exercise
of the said Office, and has not intrudcd
into the same" .a ra :
Section IL, article 4, provides how va
cancies shall be filed, and on this point
there is no dispute. ~ (.
Section "a, article 2, cited in, tho an
swer, is as follows: ,"In all elections by
the General Assembly, or either House
thereof, the members shall vote uiva yoce,
and. their votes thus given shall be en-
tered upon the journal Of the House to
which they respectively belong" ' 1
And upon tiits the defendant rests iiihs
title to the Office. The facts are admit
ted, end the question becomes one of law
solely, and briefly stated is thus.
1t is claimed by the State-1. That
where the manner or mode o. voting at
an election is prescribed by the constitu-
ton, it must be observed, and that an
election by any other mode of voting
than the ono prescribed is null and void
2, that the constitution in section lS, ar.
ticle 4, does prescribe the manner of vot-
ing at the election of Circuit Judges
(uide above;) 5, that the said mode or
manner of voting as prescribed by the
constitution was not observed at the cleo
tion by which defendant claims the
office; 4, apd dothat, therefore, the elec-
tion is q 1ullity, and the defendant has
no righ. to the Office. -
On the other hand, it is contended that
the second proposition above set forth is,
in law, not true; BIZ: that the mode OF
voting ut the election of Circuit Judges
is prescribed and fixed by section "a, ar
ucle 2, ,sas well as by section Ii, article a,
of the constitution, and that the former
section prevails as to the manner of vot-
ing, and that the latter section ennliea
Only to the manner in which the two
houses shall assemble for the purpose OF
voting; 2, that the election of defendant
was had in conformity to the require
ments Of both sections Of the constitution,
and>that, therefore, the election is good
in law, and the defendant 1s:.s@ fully holds
his Office .@.s5 s,i.
The general proposition, that where
the manner Of voting is fixed by the con-
stitution it must be observed and obeyed,
is not controverted. It is reduced, then,
to the naked inquiry, lis the manner OF
voting st election Of Circuit Judges fixed
by the constitution? and if 80, what is
that prescribed manner, and has it been
complied with in this case? pcsh sides
agree that the mode of assembly of the
two houses for the purpose of voting is
prescribed by section ,13, article a, and
that the mode is joint assembly. But, in
behalf of State; it is argued that after
the two houses have met, the vote must
be "by BALLOT" whereas, the defendant
claims that the vote must be sfvipn voce, II
in ohed;anra tn eertinn % article ? nj
the constitution. Which ID the iaw7
The case was argued on both side
With ability, and did the time permit.
der the circumstances is possible Of many
ofthe suggestions and cited authorities.
by which ] would be aided IN celebrating
an opinion upon SO grave subject. But
it is obvious that if the court has arrived
at an Interchangeable conclusion, it is it
duty to render o decision promptly
While it is important that the reasons
should be clearly act forth, it is sons
times more. important that the conclusion
be announced and uncertainty be re-
moved. Hf6i 3iif f-ps sse f,g
Let us now put together the two sec
tions in which the law OF this case lies.
Section "a, article 2, legislative depart
ment, "In all elections by the Genera
Assembly,, or either house thereof, the
members snaIi vote vlUu vocr, anu tpelI
votes TINS giycn shall ha entered npor
the journal Of the house to which they
respectively belong" lg
Section 13. article 4, judicial depart
ment, "And for each circuit judge shal
be elected by Joint ballot of the Genera
Assembly"