
    
      The State, ex relatione John Y. Stock and others, vs. John Schnierle.
    
    The Act of 1819 requires that the voters at the city election of Charleston “ shall register their names at least one month before the day of electionon Sunday, the 3d August, a number of voters registered their names and the election was held on the 3d September: Held, that the registration on Sunday was not unlawful, and that it was within time.
    
      In the computation of time, the day from which the reckoning commences, and that on which it terminates, may both be included, or excluded, as will best preserve a right, or prevent a forfeiture.
    An application for a rule to shew cause why an information in the nature of a quo warranto, to oust one holding a public office, should not be exhibited, must be in the name of the Attorney General.
    Such a rule will not be granted of course, but depends upon the sound discretion of the Court.
    
      Before 0’Neall,'J. at Chambers, Columbia, December 8, 1851.
    This was an application for a rule calling upon the respondent, John Sehnierle, to shew cause why an information in the nature of a quo warranto should not be exhibited against him, to shew by what authority he claimed and" held the office of Mayor of the city of Charleston. His Honor pronounced judgment as follows:
    O’Neall, J. This matter is brought before me on the affidavit of John Y. Stock and five other persons, who I assume are corporators of the city of Charleston, though they have made no such allegat on. It is true on the defect being pointed out on the argument, a motion was made for leave to amend, and if I had thought it necessary, I would have granted the motion; but as my judgment will be against their motion assuming that in their favor, I choose to so consider the case.
    They complain that the respondent, Gen. John Sehnierle, although apparently elected Mayor by a majority of fifty-two votes, was not in point of fact so elected, inasmuch as seventy-nine votes polled were given by unregistered voters, and that thirty-one persons voted who were illegally registered on the 3d day of August. The form of this proceeding by rule founded on affidavits, has the sanction of the King vs. Mein, 3 T. R. 597.
    
    So, too, I have no doubt if the case could be freed fix m objections hereafter to be noted, that this would be the proper proceeding, and perhaps the only one, in which relief could be given. For clearly the managers of the election have no other power than to decía: e the person having the greatest number of votes as Mayor elected. The case of Johnson vs. The Corporation of 
      Charleston, affirms the doctrine that the scrutiny of the election belongs, in the first place, to the Council, and then, if they abuse that power, that the correction of that abuse devolves upon this Court.
    So, too, I think it may be laid down as generally true, as it is in, that case, that the bad votes are to be deducted from the highest candidate. But that case did not notice a distinction which has subsequently been made, that, in purging the polls, the bad votes at each poll are to be deducted from the candidate there having, the highest number of votes. This might be important in this case if my decision turned at all upon the state of the polls. But as it does not, I merely state the distinction to prevent any mistakes hereafter. ' •
    As to the votes registered on the 3d of August, there are two objections — one, that they were registered on Sunday; and another, that they were not registered in time to vote.
    I think the registry on Sunday was a very improper and very reprehensible act, especially in a city where there is an ordinance shutting up all places of business on that day. But I am bound to say, that there is no provision in the registry law, or in any general law of this State, which declares s'uch an act as that of registering a voter’s name void.
    The other objection is equally untenable. The registry law requires that the voter’s name shall be inscribed “ at least one month before such election.”
    The month here meant is a calendar month, or thirty days. The votes were registered 3d August, the election was 3d September. Exclude the day of registering, the voles are bad; include it, they are good. Generally where there would be a forfeiture by excluding the day of the date, it is to be included. The words in the Act, “ before such election,” will not prevent the votes from being good. For, until the day of election is terminated, the registration may be counted, and, if in time, by including that day, it will be “ before such election.”
    There are two objections which have prevailed with me against this motion. The first is, that without the consent of the Attor ney General this proceeding cannot be sustained. Indeed, it must be in his name.
    It is, I have no doubt, true, that when one was claiming an office, and applied for a quo warranto to oust an intruder, that the Court would compel the Attorney General to consent to the use of his name ; but when that is not the case, he does Ms duty best, by exercising a sound discretion, in refusing his consent to proceedings which will only agitate and not benefit the community. Here the Attorney General is in no way connected with the proceeding.
    In Angel and Ames on Corporations, ch. 21, § 4, paragraph 1, page 619, I fin$ the second objection, which is, the information, (in the nature of a quo warrantor is not granted of course, but depends upon the sound discretion of the Court upon the circumstances of the case. It is plain here this is a most unprofitable business. No one is claiming the office. The relators are mere dissatisfied corporators ; before they can have the mal ter finally adjudged, another opportunity will have occurred at the polls to redress their grievances ; so, too, the trial of an issue in which the qualifications of seventy-nine voters are to be examined would be interminable. The May term of six weeks (thirty-six judicial days) would not be equal to such an investigation. A scrutiny consisting of a mere examination of the polls and registry occupied three weeks. Under such circumstances, nothing but an express legal r ule could compel me to grant a rule leading to such consequences.
    The Legislature ought to amend the charter, by placing the power of deciding on the validity of the election of Mayor and Aldermen in the hands of the managers of the election, as they have in all cases of district elections.
    The motion is dismissed.
    The relators appealed, on the grounds:
    ]. Because, it is respectfully submitted, his Honor should have granted the rule which was asked for.
    2. Because the T9 votes cast, in which the names of the voters were not registered, were illegal, and should be deducted from the majority claimed for Gen. Schnierle.
    3. Because the names registered on Sunday, the 3d August, were illegally registered.
    4. Because, if the said votes were not illegal, by reason of the registry being open on Sunday, they were, nevertheless, illegal because not registered one month before the day of election.
    5. Because the supposition that much time would be consumed in making the examination, was not a proper ground to refuse the application.
    6. Because, in other respects, the order of his Honor was in opposition to the testimony offered, and against the question of public right and public justice involved in the application.
    Campbell, for appellants,
    cited 1 Wilcock on Corp. §248-9, 251, 364-5-8 ; P. L. append. 1 ; 1 Bul. N. P. 211; 1 McC. 52 ; 1 Bay, 436.
    ~Yeadon, Memmivger, contra,
    cited 1 Bail. 611; 2 Rich. 95 ; 2 Stat. 568 ; 1 McC. 35 ; 7 Cowen, 153 ; 2 Johns. R. 184; 3 Mass. 285 ; 14 Serg. & R. 216.
   The opinion of the Court was delivered by

O’Neall, J.

In this case I have very little to add to the opinion which I pronounced on refusing the rule. Indeed what I have to say is little more than explanatory, with perhaps some little amplification of the main grounds on which my judgment below was rested.

It is said in that opinion that the polls are to be purged by deducting from the candidate having the highest votes at a poll the bad votes there given. This has always been my construction of the rule adopted by the House of Representatives; and I supposed it was fully settled in 1832, in the Small Hope’s poll. But I have since learned that decision was placed on the special circumstances. I note this matter as not at all important to he case in hand : but to leave open to future examination a matter which I had supposed to be settled.

It may be, too, as was supposed in the argument, that I cited from the Act of 1817, instead of the Act of 18 i 9, the words of the registry law.() Both Acts are of force, and both are in substance the same. For I do not perceive that there is any difference between “before the election” and “before the day of election.”

In the computation of time, the day from which the reckoning commences, and that on which it terminates, may both be included or excluded as will best preserve a right or prevent a forfeiture. ( Williamson vs. Farrow, 1 Bail. 611; McElwee vs. White, 2 Rich. 95.) In this case compute the time including the day from which the reckoning begins, and exclude the day of election, and still the votes were registered one calender month “ before the day of election.”

The cases of Cleary vs. DeLiesseline, (1 McC. 35,) and the State vs. DeLiesseline, (1 McC. 52,) are full to the point, that an information in the nature of a quo warranto cannot, be filed on the motion of an individual, but must be in the name of the Attorney General. This is, 1 think, also applicable to the present case. It is a mere motion for a rule. But if the Attorney General can alone authorize the filing of the information, how can any other ask for a rule ? I confess I do not perceive any reason that it should be so. The injury complained of is public, the remedy is to be a public one, and the judgment is to bind the public ; hence it would seem altogether proper that the public officer should, at least in name, carry on the whole matter.

That the granting or refusing the rule is a matter addressed to the discretion of the Judge, is not denied. It is said that is a legal discretion. That I admit! But still a legal discretion is to be exercised by, inquiring, is this investigation to benefit the people? Will it have any practical results which cannot be obtained in the usual manner, the ballot box ? These were all appealed to in the discretion exercised. So, too, the public convenience is another matter which ought to be looked to in a matter of this kind, and compared with the injury complained of. This was also done in the judgment below. Legal discretion I understand to be the opposite of caprice : one rests upon reasons; the other upon the “ sic jubeo” alone.

The cases of the People ex relat. Teel vs. Sweeting, (2 Johns. R. 184); Commonwealth vs. Athearn, (3 Mass. 285); the Commonwealh vs. Reigart, (14 Serg. & R. 216,) cited by the attor-nies for the respondent, are, so directly in point on the matters involved in the exercise of the discretion of the Judge below in refusing the motion, that it is only necessary to refer to them to end the argument.

The motion is dismissed.

Evans, Wardlaw, Frost and Withers, JJ. concurred.

Whitner, J. absent.

Motion dismissed. 
      
      
        (a) City Ordinances, 345, 346.
     