
    Johnston against The Corporation of Charleston.
    The city corporation. have a right to scrutinize into the elections of its members i but have ne* power to swear persons in order to ascertain for which candidate the bad votes wert* given?
    THIS was a rule obtained to shew cause why a mandamus should not issue to the corporation of Charleston, to restore the plaintiff, ivho had been displaced as a warden of the city. It appeared that Johnston had been returned a warden of the city, and had been sworn in and taken his seat at the city council board ; but that a scrutiny was after-wards demanded by his antagonist at the election ; and upon such scrutiny, it appeared that several votes had been given by persons not entitled to vote — which votes the city-council had directed should be taken from the candidate who had the highest number of votes, which being done, it left it dubious which had the greatest number of good votes s upon which it was proposed in the council, to swear the voters, or to compel them, individually, to declare for whom they voted. This, however, was overruled in the council, and the election was declared void, and a new one for the ward was directed ; when Mr. Purcell was returned duly elected in the room of the plaintiff.
    The application for a mandamus to restore the plaintiff to his seat, was on these grounds : First, that the city council had no right to scrutinize into the election of a warden ; for that the return of the managers was final. Secondly, that if they had the right, they ought to have called upon the voters to declare upon oath, for whom they individually voted, in order that it might have been ascertained which of the candidates had the greatest number of good votes. And, thirdly, that even supposing the election had been obtained by improper votes; yet, as the present applicant had been received as a member, and had taken the oath of office, this was such a recognition of his right, that, the city council could not afterwards displace him.
   The Court,

(all the Judges present)

after hearing counsel, were unanimously of opinion, that the city council, in the first instance, had the power of scrutinizing into the election of their members, and that this right was incident to all elective bodies. But that if they abused their power, or did injustice, then this court would interfere, and see that justice was done. That with respect to their swearing the voters, or compelling them to declare for whom they gave their votes, it was a kind of inquisitorial power unknown to the principles of our government and constitution, and might be highly injurious to the suffrages of a free people, as well as tending to create cabals and disturbances between contending parties in popular elections. As to the mode adopted by the council in deducting the bad votes from the highest candidate, it was perhaps the best general rule that could be adopted : for if after such deduction, he had still a majority, then his election would stand unimpeached ; but if after the deduction, the next candidate had an equal or greater number of votes than the other, so as to make it a doubtful case which of them really and truly had the greatest number of unquestionable votes; then, according to the principles of a free government and the rights of the people, it ought to be sent back to the people at large to determine finally on the point. That as to his being sworn, it could not alter the case ; for if he was not duly elected, he ought not to have taken his seat; and the mere act of being sworn in, which was founded on a supposed light, did not give him a real one, which must have depended on the choice of the people of the ward?

Rule discharged.  