
    6822
    STATE EX REL. PARLER v. STATE BOARD OF CANVASSERS.
    Elections — New Counties — Constitutional Law. — If those electors residing in the territory proposed to be cut from an old into a new county, whose polling precincts are without the proposed new county, added to those against the new county would not change the result, this Court will not consider if the statute providing for formation of new counties is unconstitutional in that it makes no provision for such electors to cast their ballots.
    Petition in original jurisdiction of this 'Court by A. R. Parker et al. against State Board of Canvassers for writ of certiorari.
    
    
      Messrs. Herbert & Wolfe, for petitioners.
    
      Messrs. Bellinger & Welch, contra.
    March 24, 1908.
   The opinion of the Court was delivered by

Mr. Justice Gary.

This is a proceeding in certiorari, for the purpose of determining whether there was error on tile part of the State Board of Canvassers in declaring that the result of the election was in favor of Calhoun County.

Prior to the election, a petition was -addressed to this Court, in the'exercise of its original jurisdiction, to prevent the holding of the election, which was refused) for the reason stated in the opinion of the Court, delivered by Mr. Justice Woods. (Parler v. Fogle, 78 S. C., 570.)

Tire findings of fact by the State Board of Canvassers were as follows:

“The election' under the Constitution of this State to form the proposed new county was held on the 17th day of December, 1907. The result of the ejection in the Orangeburg territory was 55'6 votes in' favor of the formation of 'the new county, and 99 votes against th!e formation thereof. In the Dexington territory 'the result of the election was 47 votes in favor of the formation, of the new! county and 12 votes against the formation of the same. No contest was. made as to the vote in the Lexington: territory, and accordingly the vote and the result therein is declared a® follows :
“Yes, that is in favor of the formation of the new1 county, 47 votes.
“No, that is. against the formation of the new county, 12 votes.
“We find that the vote in the Lexington territory is over two-thirds of the qualified electors voting in the said territory at said' election, and we declare the result in favor of forming said new 'county.
“The result of the election in Orangeburg territory was contested! before the county board of canvassers, upon the ground's .appearing in the record herein. The county board, after hearing the testimony offered for and against said protest, and argument on both sides, found as follows:
“ ‘We find some irregularities in several boxes-, such a-s voting outside of right precincts, not demanding proper proof of payment of taxes, etc., 'but we find that there are not enough of such irregularities to change the result of this election.
“ ‘We further find that about sixty-five or more qualified electors, residing within the area of the proposed ne-wl county of 'Calhoun, including portions of Orange, Goodbye and Poplar townships, were deprived of the constitutional right to vote in this election, as the said electors- are residents of the proposed' new county while' their voting places are without, and the act of the Legislature relating to the formation of new countie's does not provide the means or the opportunity to vote in such! cases.
“ ‘We, therefore, find that in -depriving these qualified electors of the right to vote, the constitutional provision has -been violated, -and on this ground', we do hereby declare this election null and void.’
“From1 thie finding o-f the 'county botard, both Sides have appealed to this Board, upon- the grounds appearing in the record. We have heard full argument on both sides and find as follows:
“First. That only sixty-four persons who resided, in the Orangeburg portion of the territory taken- to form the new: county, were unable to vote at said ejection because of their voting places being outside of the said territory, and there being no provision of law1 for their voting at a voting place inside of the same.'
“If it be admitted that these voters, are qualified electors, in the sense of the 'Constitution, and were, therefore, entitled to vote in the election, still the result thereof, in favor of the formation of said new county was so overwhelming, that if all of said voters wouldi have voted against the formation of the same, the result of said election would not have been changed or affected or rendered at all doubtful. For these reasons the finding and decisions of the said county board declaring the s'aid election null and void is overruled and reversed, and the election in the Orangeburg territory taken to form said newt county is declared in favor of the formation of said new! county 'by a vote of over two-thirds- of the qualified electors voting- in said election.
“Second. We further find that if all -other irregularities- and illegalities complained of existed, still the result of the election in the Orangeburg -territory would not be changed or affected, or rendered at alll doubtful, and this- we find would still be true if all votes contested as illegal or irregular Which were in favor of the formation of said new county were deducted from the vote in favor thereof, and were all other claims of voters made by the contestant as to those whto would have voted against the formation of said county, allowed and added to' the sixty-four voters referred to in the foregoing paragraph.
“Third. We hereby find and declare the said election in favor of the formlation of said new county -as follows-: In the Orangeburg territory: Yes, 556; No, 99. In the Lexington territory, Yes, 47; No, 12.
“Fourth. We find in ¡the territory taken, from each of the old counties, Orangeburg ¡and Lexington, over two-thirds of the qualified electors voting in said election voted in favor of the formation -and creation otf the said newt county, and wie declare the result of the election, accordingly, in favor of the formation of the said new county.”

The ground upon which the county board of canvassers declared the election null -and void was that certain residents within the territory of the proposed new county, hut whose voting places were not within said area, wiere deprived of their constitutional right to' vote.

The State Board of Canvassers overruled this, objection on the ground that the result of the election would not have been changed if the votes of all such electors had been counted against the formation of the proposed new county.

The vital question in the case is, whether this ruling was erroneous. Article II, Section 9, of the Constitution is as follows : “The General Assembly shall provide for the establishment of polling precincts, in the 'several counties of the State, and those now existing shall so continue until abolished or changed. Bach elector shall be required to vote at his own precinct, but provision shall be made for his transfer to another precinct, upon his 'change of residence.”

Article VII, Section 1, requires that after the filing of the proper petition, “the Governor shall order an election, * * * by the qualified electors, wiitbin the proposed area.”

'Section 576 of tire Code of Laws is as follows: “Bor the purposes of such election, the commissioners of election for each old county proposed to be cut, shall appoint three managers for each voting place in the area of the old county proposed to be cut off, not more than .two of whom1 shall be in favor of the proposed new county or against it, and shall deliver to them the books of registration for those voting places, which the registration officers shall tum over to the commissioners on demand. Such election shall be conducted in the same manner as general elections inthisStateyand' all persons-entitled, to vote under the Constitution .and laws of this State at general election's shall he entitled’ to' vote at such election.”

It is always a delicate matter to pass upon the constitutionality of an act of the Legislature, and the courts do so .only when it becomes necessary in determining the rights of litigants.

The Court in Ex parte Florence School, 43 S. C. 11, 15, 20 S. E., 794, uses this language: “It is a well settled and salutary rule, that a court should never undertake 'to pass upon the constitutionality of an act of the Legislature — an ordinate -branch o'f the government — 'unless it is necessary to the determination of the case in which such' a question is presented.”

The Court in Trimmer v. Bomar, 20 S. C., 354, 361, thus states the rule: “In elections 'the great matter isi the result. When this is clearly ascertained, it sweeps away all technicalities-. The machinery provided should be observed, but, in so far as it is not necessary to determine the result, it is directory and not mandatory. Certainly manner and form should not be allowed to defeat the undoubted will of the people clearly expressed. This would be, indeed, subordinating and sacrificing the substance to the shadow.”

The principle is thus stated in Bowers v. Smith, 111 Mo., 54, 61: “If the law itself declares the specified irregularity to be fatal, the courts will follow 'that command, irrespective of their view's, as to 'the importance of the requirement. Ledbetter v. Hall, 62 Mo., 422. In the absence of such declaration, tire judiciary 'endeavor as best they may, to discern whether the deviation from the prescribed form oif law had1 or had not such a vital! bearing 'On the proceedings as probably prevented a free and full expression of the popular will If it had, the irregularity is held to vitiate the entire return, otherwise, it is considered' immaterial. It has been somletimjes said, 'in this connection, that certain provisions of election laws are mandator}’- and' others directory. These terms may, perhaps', be convenient to distinguish one 'class of irregularities from' the other. But, strictly speaking, all provisions of such laws are mandatory, in the sense that they impose the duty of obedience on those who come 'within their terms.

“But it -does not, therefore, follo'wi that every slight departure therefrom' should taint the whole proceedings -with a fatal (blemish. 'Courts justly consider the chief purpose of such lawis, namely, the obtaining of a fair election and an honest return, as paramount in importance to the minor requirements which prescribe the formal step® to reach! that end, and in order not to defeat the main design, are frequently fed to ignore such irregularities of election officers as are free oif fraud and have not interfered with a full and fair expression of the voter’s choice.”

'Section 577 of the Code of Laws provides that “a decision of the Board of State 'Canvassers shall be final 'and: 'conclusive evidence, of the result of 'the election, on hill questions of fact.”

Therefore, there can be no doubt as to the question of fact, that if all the electors residing within the territory of the proposed new. county, 'but -whose polling precincts were outside had voted, the result of the election would not have- been changed. In view of the facts in this particular case, these electors have not shown that it is necessary to pass upon the constitutionality of the statute in1 order to- protect their right to take ¡part in the election.

■This ruling practically disposes of all questions in- the case.

'An order dismissing the proceedings 'has already been fifed.  