
    The State vs. Francis G. Deliesseline.
    An information in the nature of a quo warranto is not void, merely be cause it is filed by the order or directions of the Court.
    On an information in the nature of a quo warranto against a person, to show by what authority he claims to exercise the office of sheriff, the decision of the managers is conclusive as to all matters legally submitted to them, as long as that decision remains unreversed.
    
      A majority of the managers is a quorum to try' the question ; and the concurrence of a majority of that quorum is sufficient to decide it.
    An information in the nature of a quo warranto, may be filed against an officer .who holds a commission under the authority of the Stats.
    1 A f' appeared in this case that an election had been held for sheriff of Charleston' district, pursuant to the act oi 1808, C2 Brevard^ 225,J which transfers the election of sheriff from the Legislature to the people. Upon counting out the votes, the defendant was found to have a majority.
    ■Mr. Cleary, the opposing candidate, gave notice, according to another provision of the same act, that it was his in; tention to contest the election.
    The managers, who are constituted the tribunal to try the question, were accordingly'convened for that purpose. Upon an investigation of the matter, they came to the conclusion, that the defendant had been duly elected, and gave a certificate to that effect; upon which the governor granted him a commission. An application was then made to the Attorney-General, on behalf of Mr. Cleary, fin-an information, in the nature of a quo'-warranto against the defendant, to shew by' what authority he claimed to exercise the office of sheriff of Charleston district.' The Attorney-General made out an information which'contained the following suggestions or grounds, on which the information was predicated ' 1 '
    1st. For that a majority of the managers assembled at Charleston, but only a minority of the whole number of managers, and a small minority objected, decided, and refused to receive the testimony of any person who voted, although he voluntarily offered or proffered his testimony io shew or establish the iact, that he voted without being .legally qualified.
    2d. For that said minority of said whole number of managers refused to receive evidence that persons had declared, subsequently to their voting, that they were not American citizens, and that they were not entitled to vote at the election aforesaid; thereby, contrary to all rules of evidence, excluding the confession of a person to shew that he had acted incorrectly, and not permitting a man to be. convicted or condemned by the words of his otvn mouth.
    3d. For that, although, the grounds for the protest were, furnished as the law directs,and one ground was, that there were more bad votes given than Mr. l)eliesse/ine,s majority was over the next highest candidate, yet all testimony was precluded by a majority of the whole number of man ■ agers from proving a number of bad votes ; because the. said votes were not contained in the list rendered in on. Saturdaj- evening, the 15th of January, one thousand eight hundred, and twenty; against which rule, as it respects the limitation of time for furnishing said list, NathanielGreent. Cleary, one of the opposing candidates at the time, protested, and by his counsel, stated that he objected to the whole of the votes.
    4th. For that a number of paupers, not less than seven, who received a support from the poor-house, in the city of Charleston, and although objected to, were decided to be good voters; and also, a number of persons, not less than ten, who were but transiently in the state, and had never any fixed residence on the shore in the state, but were fishermen from Grotan,in the state of Connecticut, who came here in the autumn of each year, and returned in the spring or early part of the summer of each year, with their smacks or small vessels, to the said town of Grotan, in Connecticut, where they and their vessels belonged; and when at the southward, which was not more than about six or seven months in any one year, they were not more than one half of the time even in the port of Charleston ; yet. though objected to, their votes were decided to be good; none of the aforesaid persons having any freehold property in Úie district or state aforesaid.
    5th. All the persons who were managers were not present at the time of the declaration of the election ; none but a small majority of the whole number.
    6th. For that at many .of the places where the. election was held, not more than one of the managers was present. And at one place, to-wit, at St. James’s, Goose-creek, the ■poll was not opened until the second day of the election, and then at about eleven o’clock ; and when opened, was opened at the distance of from four to six miles from the place of election, where a vote or votes were received; and, in the whole, at this place, were twenty-six votes received, which were decided to lie good votes.
    7th. At many of the places of election, the Attorney-General aforesaid, the relator, on behalf of the State, has been informed that it was proved before the managers of election, that the polls were closed ; the boxes, bottles, or phials, in which the votes were received, were not sealed according to law, nor closed and opened in the presence of two witnesses, electors, called for that purpose, as the law directs.
    8th. For, that neither of the managers at St., James’s, Goose-creek, attended at the court-house in Charleston, nor from one other place or poll, to count the votes received at the poll or polls. But one of the managers held the poll, or sent the bottle or phials in which the votes were received by a third person, to the court-house, to have the votes counted. Nor did' any manager attend from that place or those places, to decide upon or declare the election,
    9th. For, that the return signed or certified to the governor, was declared returned and certified by a small minority of the whole number Uf the managers of the district, to-wit, but by fifteen; one of whom, together with six others who were present, protesting against the- legality of such return, when in fact there are thirty-nine managers for the district, a majority of whom ought to háve met and concurred in deciding and declaring the election.
    
      •10th. For that at one or moreofthe polls, the managers 'were not sworn at all to manage the election, and at other places, sworn by persons not authorized by law to swear-them.
    11th. For that many persons who were proved tobe 'born in Europe, were permitted to vote; and when proof was adduced to this fact, their votes were decided tobe good, although they produced no certificate or proof of their naturalization.
    12th. For that the managers determined that there were twenty-five votes received from persons not entitled to vote in this district, exclusive of the twenty-six votes taken at St. James’s, Goose-creek, where the poll was opened at a distant place.from that appointed by law, and that only for one day; and no manager attending from that place to count the votes or decide the election, and the poll opened by one manager, and the bottle or phial in which the votes were received at the opening and closing, was not sealed in the presence of witnesses; which twenty-six votes, added to the other twenty-five votes declared bad by the managers, would make fifty-one bad votes, which is more than Francis G. Dcliesseline had over the said Nathaniel Greene Clearyj the next highest candidate.
    13th. Many'of the managers who decided on the elec-, tion, were not sworn in according to law. Having prepared the information ready to be filed, he made the following endorsement ther.eon : “ In this case a majority of all the managers of the election for sheriff of Charleston district, did assemble for the purpose of declaring the election according to law. Before the board of managers so assembled, Mr. Cleary appeared by his counsel, and as soon as it was ascertained that Mr. Deliesseline had the greatest number of votes, be contested bis election, on the grounds, (substantially',) which are now taken in this information. The managers heard evidence and argument on both sides,'and finally decided, by a majority of the managers assembled, in favor of Mr. Deliesseline's election. The same majority certified the1 election to the Governor, who commissioned MV. Dc~ Tiesselinc accordingly. I have been required by Mr, Cleary to exhibit this information in the name of the state. But having been originally engaged as counsel for Mr. Deliesseline, I am urfwilling, (though no longer his council,) to decide on Mr. Cleary's rights; and ns the constitutional court have declared in their decision, that the proceeding must be instituted by “the leave of the court, or at the will of the Attorney-General,” f think it proper to refer Mr. Cleary to the court, to ask leave accordingly.” ■ Application was therefore made to Judge Bay, who presided in the'conrt below, and the following order obtained:
    “ After hearing counsel on both sides, I am of opinion that the relator should have leave to file this information as of this day, May 11th, 1821.”
    This was a motion to reverse that order on the following grounds:
    1st. That the court ought to refuse an information in behalf of the state, to the Attorney-General, because he may grant it himself.
    2d. That Francis G. Deliesseline is the sheriff of Charleston district, having been duty commissioned by the executive, upon the certificate of a majority of the sitting managers of election, who, being a quorum or majority of the whole, were competent to hear and decide, and did, by a majority of the sitting members, decide the contested election, in favor of Mr. Deliesseline, whose decision can not be reversed by an information in the nature of a quo warranto, against the- present, incumbent.
   Mr. Justice Nott

delivered the opinion of the Court.

I consider it unnecessary to examine the numerous authorities resorted to by the counsel in this case for the purpose of ascertairig the powers of the Attorney-General, in relation to the granting of informations. It appears that in England informations are of two kinds. Those filed ex-officio, by the Attorney-General, (1 Chitty Crim. Law, 843,) and those which, by leave of the court, are prose» cuted in the name of the coroner, or master of the crown 'office. In those carried on by the Attorney-General, ex-officio, and on bis mere motion, it is not usual for the court to interfere : But where they are filed at the instance of any individual, it is usual to obtain leave of the court. (Rex vs. William Davis Phillips. 4 Burrow, 2039. The same vs. Phillips et al. 3 Do. 1565.) In this state, I apprehend, all informations must be carried on in the name of the Attorney-General or solicitor. And it is at-least doubtful whether tinder our constitution, any iniormation for a misdeameanor purely of a public nature, and not to try some private right, can be sustained. When I speak oí a private right, I do not mean the right of the party applying for the information only ; but of the person accused, who may not only be punished for the misdemeanor, but ousted of his office. But be that as it may, I have no doubt but that the Attorney-General may, in any case, apply to the court'for directions, and that the court, although, perhaps, it cannot order, may aid him with its advice. There may be many cases where it would seem peculiarly proper, and some where it would be absolutely necessary, that it should be done. The Attorney-General may stand in such relation to the party against whom an information is required, as not to be able to trust his own judgment; or in such that it ought not to be trusted by the 'State. Such a proceeding might b^required against the Attorney-General himself, in which case he could not act. I am satisfied, therefore, that the course which has been observed on this occasion has been proper and correct, and the only one perhaps, which, under all the circumstances of the case, ought to have been pursued.

Speaking of the several kinds of information, Bacon says, informations in the nature of a quo warranto may be, and frequently are exhibited with leave of the Court for usurping privileges, franchises, &c. (3 Bacon, Title Information A.) But the fact of having obtained leave of the Court . does not necessarily imply that it was done against the consent of the Attorney-General. Indeed I consider the information in this case as filed with his leave. The act of referring it to the Court was giving his consent, if, in the-opinion of the Court sufficient grounds were exhibited.

2d. Under the second ground, a variety of distinct questions have been submitted :

1st. Whether the merits of the case ought to be heard on the application for an information, or should be reserved until the answer of the defendant be filed.

2d. Whether an information, in the nature of a quo -war-ranto, may be granted against an officer commissioned under the authority of the state, or only against officers of corporations ?

3d. Whether the tribunal for the trial of contested elections ought to be composed of all the managers, or whether a majority constitutes a quorum for that purpose ?— And if a majority, whether the concurrence of a majority of the sitting members be sufficient to make a decision, or whether a majority of the whole must concur ?

•4th. Whether the decision of that tribunal is conclusive upon this Court ?

1st. On an application to the discretion of the Court for an information in the nature of a quo warranto, the grounds of the motion must be distinctly stated; and the party against whom the proceeding is requested ought first to be served with a rule to shew cause. (3 Bacon, Title Information D.) The motion in this case must be considered in the nature of a rule to shew cause. If, admitting the truth of all the allegations contained in the' suggestion, there is no ground on which the prosecution can be sustained, the information ought not to be granted j and that question can as well be tried on the rule to shew cause, as on the information. In a question of this sort, where the public interest, as well as that of the individual, may be deeply concerned in the speedy decision of the question, the Court will avail themselves of the earliest opportunity to effect the object. If the suggestion contain sufficient matter to authorize an information, the Court ought to grant the motion, without having the merits discusstd. All the grounds stated in this suggestion relate to questions which were decided by the managers, while acting in a judicial capacity; except that which relates to the organization of the Court itself. Whether the question ought to be decided at this stage of the proceeding, will depend then upon the vie.w which the Court shall take of the third and fourth grounds above stated.

2d. On the second question, I shall make but few observations in addition to what I have said on that point,' in the case of Green and Shackleford, decided1 in this Court. (Vide also the King vs. Mein, 3 Term. 598.)

Were it even admitted that informations in the nature of a quo -warranto are, in England, confined to officers of corporations, it would not follow that such a proceeding . may not be had here to try the right of an officer commissioned under the authority of the State. In our republican government, the power of appointment is a delegated power. It is seldom accompanied with the power to remove. The right of sovereignty here is in the people, and not in the executive. The usurpation of an office is not an invasion of executive prerogative, but of the rights of the people ; and the only method by which their rights can be protected, is through the instrumentality of the Courts of Justice. If the appointing power violate the constitution or the law of the land, it belongs to this Court to correct the evil. In the case of Hays and Harley, the Court declared the act of the Legislature, under which Hays was elected, void and ousted him of his office; and in the case of the State vs. Jeter, who was elected by the Legislature, *th'e Court allowed this proceeding for the purpose of try-iifglhe constitutionality of his election. The constitution is the supreme law of the land, equally obligatory uppn the Legislature and individuals ; and if a person is inducted into office by an unconstitutional law, this Court will declare it inoperative and void.

3d. The next is a more important and difficult question to decide. Whether a delegated authority should he exercised by all the persons to whom the power is delegated, or by a majority, does not appear 'to be settled upon any feed or established principle. It would seem to me that i't must always be a question of expediency or necessity, or of positive compact. I think however, that it is now pret-ty well understood that where a trust is of a public nature, a majority may act for the whole, (The King vs. Beeston. 3 Term R. 592. Grindley vs. Barker, 1 Bos. & Pull. 229. Green vs. Miller, 6 Johnson, 39.) In cases where the body consists ói an indefinite number o! persons, as in all democratic governments, a majority -from necessity must govern. The same necessity exists (_if not to the same extent) in all numerous bodies. Mr. Locke say’s. “ where any number of men have consented to make one community or government, they are thereby presently incorporated, and make one body politic, wherein a majority have a right to act and to conclude the rest.” 2d vol. 255, § 95, Because, he says, the “ consent (of the whole) is next to impossible ever to be had, when we consider the infirmities of health and avocations of business, which in a number, though much less than that of a commonwealth., will necessarily keep many’ away from a public assembly.” Id. §98. See also Grotnis, 204, B. 2, C. 5. 1 Brown's Civil Law, 147. 2 Rutherforth's Institutes, 1, 2. It seems also to be congenial with the spirit and practice of all our republican institutions. The constitution of this State and of the United States, require only a majority to constitute a quorum to do business, and I presume that rule would have been adopted, ii they had been silent on the subject, I will mention one other body, which, from the persons and characters of whom it is composed, is of no inconside rabie authority. I mean the Board of Trustees of the South-Carolina College. That Board consists of twenty-nine members; but the act establishing the Institution constitutes eleven a quorum, to transact the most important business within their jurisdiction. All the reasons which exist for adopting such a rule in the cases aboye a3. luded to, apply in full force to the case now under consideration. The act ought to have such a construction, if not inconsistent with its letter or spirit, as will give it a practical operation. The number of managers' at the several places of election in this district, amount to thirty-nine. The act provides that, “ if any person shall be disposed to contest the election of any person so elected sheriff, he shall, on the day on which the votes are counted over, and the election declared, signify his intention in writing so to do to the managers, and the ground on which he intends to contest the same. And the said managers shall thereupon, and they are hereby authorized to hear and determine such1 contested election so to them stated ; provided, that no manager shall lie permitted to sit upo: the hearing and determining any contested election, wherein he may have been a candidate for the office of sheriff; and in case such ele'etion shall not be declared void, the said managers shall certify to the governor the person who is elected, who shall be commissioned in manner aforesaid. (2 Brevard, 226.) The language of the act seems to require the construction which has been given to it. The person intending to contest the election, is required to signify his intention to the managers on the day the votes arc counted over, which must necessarily mean the managers who have convened for that purpose.- It could not he intended that he should give notice on that day to those managers who might be thirty miles off, or even out of the district at the time. It seldom happens that all the managers can attend, and it is a matter of public notoriety:, that it more seldom happens that all do attend for the purpose of counting over the votes. The said managers, (which must mean the same managers to whom the notice was given) are also authorized to hear and determine the same. The object of the act is, to insure a prompt and speedy decision of the question. If the attendance of all should be required, the death, sickness, or absence of one from any other cause, would defeat the election, whenever it should be contested ; or even when there should be nó contest, if it requires the whole number to count the votes. The difficulty of getting so many together, repels the idea of such a construction. The delay which it would almost necessarily produce would leave the district half the time without a sheriff, or cast the appointment on the governor; and according to the decision which has just taken place in the case of the State vs. W. M. Hudson, (post) an appointment by him, must continue for the’ whole constitutional term of office. Such a construction, therefore, would almost amount to a repeal of the act. The conclusion then follows, that a majority must constitute a quorum to transact the business ; and that decision is conclusive of the other question. For, according to the principle of all the cases referred to, a quorum possesses all the powers of the whole body; a majority of which quorum must of course govern. It is no where laid down that the majority must be unanimous, buthh'at they may act and decide. Thus Grotius says, (ut supra,) though there were no contracts or laws that regulate the manner of determining affairs, the majority would naturally have the right and authority of the whole ; so in 2 Rutherforth, B. 2, c. 1, $ 5, those who are absent are understood to devolve their power of voting upon those who do attend ; and that also is conformable to the general principles of our govern mant. The constitutions of this State and of the United States, declare that a majority shall be a quorum to do business ; but a majority of that quorum are sufficient to decide the most important question. It has already been stated that eleven constitute a quorum of the Board of Trustees of the College, which is composed of twenty-nine members. Six constitute a majority of that quorum, and the concurrence of that number, when only eleven are present, has always been held conclusive on the whole body. In the case of Rex vs. Foxcroft, (9 Burr. 1017,) the whole number of electors was twenty-five; out of that number twenty-one assembled pursuant to summons. A particular person was nominated, for whom nine voted. Eleven refused to vote at all. The person who received the nine votes, was held duly elected. Lord Mansfield said, whenever electors are present, and do not vote at all, they virtually acquiesce in the election made by those who do. And Justice Wilmot, in the same case, mentioned the case of Rex vs. Withers, where, out of eleven voters, five voted and six refused; the Court held that the six virtually consented. See also the case of Sir Robert Salisbury Cotton vs. Davies, 1 Strange, 53, where it was held that a majority of the number present, was sufficient. It appears, therefore, that whether we consider the case upon principle or authority, we are led to the same result. Twenty tonstitute a majority of the whole number in this case. If a majority of the whole number be required, and a bare majority meet, they must be unanimous. But whether they would be unanimous or not, could not be ascertained until the case had been heard, and their opinions pronounced. If they/ should not agree, a second Court must be organized with all their prepossessions, and with the same uncertainty with regard to the result. Indeed the hopeless expectation of unanimity in such a body, where the least doubt could be excited, renders it equally expedient and necessary that the concurrence of a majority only should be required.

This brings me to the last question involved in this inquiry ; and that question has been clearly and distinctly settled in the case of Grier & Shackleford, from Georgetown. It is not now a question whether it was then correctly settled. The importance of adhering to the decisions of this Court is becoming more and more manifest every day. A greater evil can scarcely attend a country, than that the decisions of a Court of the last resort should be unstable and fluctuating. The very object of such a Court is to give certainty to what was before uncertain.— Its decisions become a .rule of property, and a rule of conduct, and ought to receive such support as to secure to them the unshaken confidence of the community. The character of this court has suffered from a mistaken notion which has been entertained, that the Judges have not paid sufficient respect to their own decisions. I feel authorized to say that it is a mistaken notion ; because, after ten years experience, I have known but one case where the Court iias undertaken to review and reverse a former decision. The case of Rose & Daniel was reviewed and overruled by the case of Fasoux & Prather, (1 Nott & McCord, 296.) But it is to be observed that the case of Rose & Daniel war not finally disposed of when tile latter decision took plr.ee. It will also be further recollected that the revision of that ■ •.ase was not effected by an appeal brought up by counsel, but by a question reserved at the special instance ami recommendation of a very learned and influential member of the bench. And the Court yielded to it from the respect due to one so well entitled to their respect, and who justly possessed, in an eminent degree, the confidence of the community. I am aware that contradictory decisions have been made, and will continue to be made, until our decisions are regularly reported. The Judges cannot recollect all the questions that have been before them, and subsequent judges cannot have an intuitive knowledge of the decisions made by their predecessors. But when they come before us in an unquestionable shape, there are but. few instances in which they ought not to govern.

It has been contended in the course of the argument, that this question has not been settled in the case of Grier & Shackleford. But I have not been able to discover any distinction, except that that case goes farther than has been contended for in this. In that case, the counsel, apprehensive that a quo warranto could not be supported against the officer, as long as the proceedings of the managers remained unimpeached, applied for a mandamus against them at the same time. The Court discharged the rule on the managers, without requiring them to shew any cause, on the ground that, as the Legislature had constituted them a tribunal to u hear and determine” the question, their decision was final and conclusive, and this Court had no control over them. That furnished the. ground of dissent on my part. Not that I intended to prejudge the merits of the case ; but I thought the manager'5 were subject to the mandatory process of this Court, and that the rule was prematurely discharged. The decision ot the Court, however, is to be respected. In this case no siich inviolability is contended for on the part of the managers. The ground of defence is, that the proceedings ought to have been against the managers, and not against the incumbent; and that he cannot be ousted’ of his office' ns long as their judgment remains unreversed. If, therefore, the case of Grier & Shackleford decided any thing, it decided the principle involved in this case. Some ambiguity appears in that case, from the circumstance of some of the Judges having spoken of it as a mandamus, while others treated it as á quo warranto. But when it is understood that the two cases wore taken up together, the my-lery is explained. If we are to be governed by the casi oi Grier & Shackleford, it is unnecessary to enquire how far the judgment of an inferior tribunal like this may be inquired into in this collateral way. It is sufficient for ibis Court that the question has been decided. Neither is it necessary to go into an inquiry how far the regularity of an election can be tried through the medium'of the person elected. I will barely refer to two cases on the subject, without expressing any opinion: The King vs. Meu, 3 Term Rep. 596. Symmers and others vs. The King, Cowper, 507. The decision of the managers then is conclusive upon all the grounds, except that which relates to die Court itself; and that question may' as well be settled on this motion as in any other way. It would be an idle ceremony to grant an information, when it appears upon its face that the object wished for cannot be obtained.

The decision therefore of the Court below, must be reversed.

Justices Colcock and Huger, concurred.

Mr. Justice.Ucn/,

dissenting, delivered the following opinion:

This is a motion to rescind an order I made at Chambers, on the 8th instant, for leave to file an information in nature of a writ of quo xvarranto ; ami as a majority of the Judges have been against me on that point, I have only to say, that it becomes me respectfully to submit to the opinion of that majority* The application was to my7 discretion as one of the Judges of the State; and in the exercise of it, I was governed by the best judgment I could then form upon the subject. If I had refused the application, it might have been said on one hand, that it would have amounted to a denial of right, and have been closing the door of justice against an oppressed man j while on the other hand again, it was contended and urged, that the case was not now open for further investigation, as it had been previously determined by the Board of Managers appointed by the Legislature, whose decision, it was alleged, was final and conclusive. In this confliction of sentiment, I confess I did not choose to take upon myself alone,- the responsibility of shutting out forever, all chance of further investigation ; but thqught it most advisable, under all the circumstances, to make such a decision as would admit of an appeal to a full bench, before whom, (if I should have erred in opinion,) an opportunity would be afforded of correcting such error, and of fixing a principle that would govern in all similar cases in future throughout the State of South-Carolina. Whereas, if I had refused the motion, it would have been deciding alone, and talcing all the responsibility upon myself; which could mót, in the nature of things, be so satisfactory to the citizens of the State as the course which has been pursued, by which means this subject has again come in review before ali the Judges; a majority of whom have put this question at rest. I was not unaware of the Georgetown case, (Grier & Shackleford,) but that was a new case, and although I concurred in it, I did not think it so conclusive, in cases where flagrant abuses were alleged, as to prevent the superintending power of this Court from being occasionally exercised for the cor- , rection of such abuses. It was not my intention, however, to give any opinion on the merits of the question on either side, nor did I hint at it in the remotest degree y my onlv view was, to give the parties a more full and satisfactory bearing before a jury of the country, agreeably to the rules oflaw. In the Georgetown case, it was determined, that a majority of the managers had a right to determine the contested election; and that it was the intention of the Legislature that a majority of the managers should finally decide. In that case, however, the whole of the mana* gers were present when the decision was made. In the present case, a new principle has been determined, which did not arise on that question ; here it has been determined, not only that the majority should 'decide finally, but that a majority of that majority shall be equally decisive and final as if the majority of the whole should have determined it, although the latter majority should be a minority of the whole body of managers. So that in future, if the Legislature should appoint eight managers to conduct the election in any district in the State, and five out of the eight were to attend to count the votes, and declare the persons elected, the determination of any three out of the five shall finally determine the election. This is carrying the principle much further than was ever hinted at in the Georgetown case, and is one to which I can never yield my assent, until sanctioned by the Legislature,

Mr. Justice Gantt,

dissenting, delivered the following opinion :

1 am of opinion the Judge below was correct in granting the information in nature of a quo warranto. That, and not the merits of the case, was the question to be tried above. I think the decision therefore, on the merits, was premature in the Court of Appeals.  