Opinion
13568
January 31, 1933.
Before FEATHERSTONE, J., York, February, 1932. Affirmed.
Certiorari by J.R. McAlhaney and others against J.B. Elliott and others. From judgment rendered, T.F. Lytle and T.B. Spratt appeal.
The order of Judge Featherstone, directed to be reported, is as follows:
ORDERThis matter came before me on a petition for a writ of certiorari to review the action of the trustees of Fort Mill School District No. 28, constituting the Board of Canvassers for a school trustee election, held in said district on January 12, 1932, wherein they declared W.P. Epps, T.F. Lytle and T.B. Spratt had received the highest majority of the votes cast in said election.
In response to the writ of certiorari issued by me herein on January 23, 1932, the matter came up before me at Winnsboro on February 16, 1932, at which time the respondents appeared and filed:
1. Return of the Board of Trustees.
2. Return of the managers of election.
3. Return of T.F. Lytle and T.B. Spratt — all of which were duly verified. And, also as directed in the writ, certified the entire record in the matter, including the ballot box and all contents, including the return of the managers of election, the poll list, and 103 envelopes containing the individual votes of 103 contested voters.
Evidence supporting their position was filed by both respondents and petitioners.
Several grounds of protest and contest were raised in the petition, reference to which is craved; but after opening the ballot box and reading the report of the managers and seeing the poll list, it was stated by petitioners that the only ground of protest which they considered necessary to be considered in hearing their petition and in determining and declaring the true result of the election was that 103 electors had been refused the right to vote regularly or had been required to vote in separate envelopes under seal, with the name of the voter indorsed thereon, and at the time making notation upon the poll list as to the reason why each of the said 103 voters were not allowed to vote, and that the managers erred in refusing to allow each of the said 103 electors to vote upon proof of the payment of their 1931 poll tax at any time on or before December 31, 1931, and in refusing to count such votes in declaring the result of said election, and that the Board of Trustees also erred in refusing to count the votes of all of the said 103 electors who were denied the right to vote because the poll tax receipts from the County Treasurer produced by them were not dated thirty days before the election or on and prior to December 12, 1931.
The managers of election reported as follows:
"We conducted the election in accordance with our instructions given us by the Board of Trustees. After the closing of the polls we opened the ballot box, counted the ballots cast, in public, made a tabulation thereof and submitted the following result:
"Total number of ballots cast were 428. Of this number 103 electors offered to vote without submitting a poll tax receipt dated more than thirty days before the date of election; that is, they offered to vote, submitting poll tax receipts dated December 14, 1931, or later. Those 103 electors were required to cast their ballots in separate envelopes, which were placed in the ballot box. According to our instructions, these ballots were illegal and they were separately counted. * * *
"After tabulating the votes which were legally cast, we beg to report the following result:
"W.P. Epps, 313 votes.
"T.F. Lytle, 191 votes.
"T.B. Spratt, 173 votes.
"J.R. McAlhaney, 155 votes.
"H.D. Harkey, 134 votes.
"We also tabulated the 103 votes cast in envelopes by electors who endeavored to vote on poll tax receipts dated December 14, 1931, or later, and of this number:
"W.P. Epps, 101 votes.
"T.F. Lytle, 13 votes.
"T.B. Spratt, 9 votes.
"J.R. McAlhaney, 98 votes.
"H.D. Harkey, 85 votes."
The evidence showed that in counting these 103 ballots the managers removed each ballot from the sealed envelope, tabulated the vote thereof, and returned the ballot to its original envelope, keeping all of such contested ballots together and separated and not commingling same with the uncontested ballots.
The examination of the poll list kept by the managers showed that of the 103 contested ballots 96 of said votes had been denied the right to vote upon tax receipts bearing date December 14, 1931, to December 31, 1931, inclusive, the other 7 voters having been denied the right to vote upon 1930 tax receipts, or upon tax receipts dated after January 1, 1932.
It was agreed by attorneys for petitioners and respondents that the only question involved in the determination of the matter was whether or not the managers and trustees had erred in refusing to count the 96 contested ballots cast by electors on tax receipts dated less than thirty days prior to the election, to wit between December 14, 1931, and December 31, 1931, inclusive.
In the case at bar the election was held on January 12, 1932. This then brings up the question of whether or not an elector who pays his poll tax between December 14 and December 31, 1931, inclusive, can vote at an election held on January 12, 1932; such tax receipt being dated less than thirty days before the day of the election.
This involves the construction of Article 2, Section 4, subdivision (e), of the Constitution of South Carolina, as amended, ratified, and confirmed by Act of April 22, 1931 (see 37 St. at Large, p. 446), which is as follows: "(e) Payment of Taxes Necessary for Voting. — Managers of election shall require of every elector offering to vote at any election, before allowing him to vote, proof of the payment thirty days before any election of any poll tax then due and payable. The production of a certificate or of the receipt of the officer authorized to collect such taxes shall be conclusive proof of the payment thereof."
Before this amendment, subsection (e) was as follows: "(e) Payment of Taxes Necessary for Voting. — Managers of election shall require of every elector offering to vote at any election, before allowing him to vote, proof of the payment of all taxes, including poll tax, assessed against him and collectible during the previous year. The production of a certificate or of the receipt of the officer authorized to collect such taxes shall be conclusive proof of the payment thereof."
After careful consideration of the matter, it appears to me that the petitioners are fully sustained in their position that the 96 votes are legal and should be counted by the principles laid down in the decision of the Supreme Court in Clarke v. McCown, 107 S.C. 209, 92 S.E., 479, affirmed in Abernathy v. Wolfe, Attorney General, 117 S.C. 545, 109 S.E., 275, 276.
The case of Clarke v. McCown involved the validity of an election held on May 9, 1916, on the question of annexing a part of Berkeley County to the County of Charleston.
The case of Abernathy v. Wolfe involved the validity of an election held on January 11, 1921, upon the question of annexing a part of Chester County to York County.
The issue was raised in each of these cases that numerous persons were permitted to vote whose votes were not legal, because they had not paid their poll tax six months before the election.
In disposing of this question, the Supreme Court, in the Abernathy case, quotes the Court's opinion in the Clake case, as follows: "Subdivision (a) of Section 4, Article 2 of the Constitution prescribes as one of the prerequisites of the right to vote "the payment six months before any election of any poll tax then due and payable,' and subdivision (e) of the same section requires of every person offering to vote `proof of the payment of all taxes, including poll tax, assessed against him and collectible during the previous year.' By the plain terms of the Constitution these provisions apply to all persons offering to vote at any election. Therefore, it makes no difference whether it is a general or a special election. The purpose of the lawmakers was to stimulate due performance by the citizens of their duty to support the government, and penalize delinquency in that regard, and forestall the evil practice sometimes resorted to by those interested in elections of indirectly purchasing votes by paying the taxes of delinquents immediately before an election to qualify them to vote therein. It was not intended to penalize by disqualifying one who had not become delinquent in the matter of paying his taxes. One who merely takes advantage of a privilege extended to him by the law is not in default. Therefore, although the taxes for the year 1915 were payable at any time between October 15th and December 31st, without penalty, all electors who paid their taxes on or before December 31st were not in default and were entitled to vote in any election held after that date, if otherwise qualified. But those who failed to pay their taxes on or before December 31st were disqualified from voting in any election held within six months thereafter."
The undisputed evidence shows that the ballots of 96 of the 103 contested voters were not counted in declaring the result of the election whose tax receipts were dated from December 14, 1931, to December 31, 1931, inclusive. These votes were legal and, as stated above, the ballots have been preserved in the original envelopes in which they were voted under protest and not commingled, and, upon instructions of the Court, have been counted and tabulated by the attorneys in this proceeding, and the result of such count filed in the record as follows:
W.P. Epps, 96 votes.
T.F. Lytle, 12 votes.
T.B. Spratt, 9 votes.
J.R. McAlhaney, 93 votes.
H.D. Harkey, 81 votes.
The above number of votes should be added to the votes, as shown by the tabulation of the uncontested ballots by the managers, and the combined result and total of the said uncontested ballots and the 96 contested ballots will give the correct result of said election, as follows:
W.P. Epps received 313, plus 96, equals 409 votes.
T.F. Lytle received 191, plus 12, equals 203 votes.
T.B. Spratt received 173, plus 9, equals 182 votes.
J.R. McAlhaney received 155, plus 93, equals 248 votes.
H.D. Harkey received 134, plus 81, equals 215 votes.
— from which it appears that W.P. Epps, J.R. McAlhaney, and H.D. Harkey have each received the highest number and majority of the votes cast in said election and were duly elected as members of the Board of Trustees of Fort Mill School District No. 28 in said election.
Now, therefore, on motion of Wilson and Wilson and John M. Blackmon, attorneys for the petitioners herein, it is ordered and decreed that the resolution and declaration of the Board of Trustees of Fort Mill School District No. 28, constituting the Board of Canvassers for school trustee election, held January 12, 1932, declaring W.P. Epps, T.F. Lytle and T.B. Spratt elected as members of the Board of Trustees, is hereby vacated and set aside.
It is further ordered, adjudged, and decreed that W.P. Epps, J.R. McAlhaney and H.D. Harkey are the duly elected members of the Board of Trustees of Fort Mill School District No. 28, in said election on January 12, 1932, and that the said W.P. Epps, J.R. McAlhaney and H.D. Harkey each do forthwith take the oath of office before the chairman of the Board of Trustees, or any officer authorized to administer such oath, and that thereupon they each enter immediately upon the discharge of the duties of the office of such trustee.
Messrs. Spencer White and Finley Spratt, for appellants, cite: As to requirements for registration to vote: 120 S.C. 534, 76 S.C. 574, 107 S.C. 209, 117 S.C. 545. Construing words in statute or Constitution: 84 S.C. 324, 16 S.C. 52, 12 Wheat., 332, 151 S.C. 112, 218 P., 859, 8 L.Ed., 1260. Payment of taxes necessary: 154 S.C. 74, 86 S.C. 451, 130 S.C. 20.
Messrs. Wilson Wilson and J.M. Blackmon, for respondent, cite: As to payment of poll tax six months before election: 117 S.C. 545, 41 S.C. 92, 95 S.C. 375.
January 31, 1933. The opinion of the Court was delivered by
The facts and issues involved in this case are sufficiently stated in the order and decree of the Circuit Judge, Hon. C.C. Featherstone, who heard the case on the circuit.
We are satisfied with the conclusion reached by Judge Featherstone, and for the reasons assigned by his Honor, the said order and decree is hereby affirmed and made the judgment of this Court.
MR. CHIEF JUSTICE BLEASE and MESSRS. JUSTICES STABLER and BONHAM concur.