The opinion of the Court was delivered by
McIver, A. J.
This is an appeal from an order made by the Judge of the Fifth Circuit, discharging a prisoner from the custody of the Superintendent of the Penitentiary who had been brought before him under a writ of habeas corpus. The prisoner based his application for a discharge upon a paper purporting to be a pardon, dated the 20th day of December, 1876, signed by D. H. Chamberlain as Governor of South Carolina. The application was resisted solely upon the ground that the paper was not entitled to be respected as a pardon, because the person by whom it was signed was not at the time entitled to exercise the powers of Governor of the State.
A preliminary question has been suggested as to whether the order of the Circuit Judge discharging the prisoner is appealable; and this we must first dispose of.
We are not distinctly informed of the grounds upon which this question is raised, as this part of the case has been submitted without argument, and we have been furnished with no authorities on the point. If it is placed upon the ground that this is practically an appeal on behalf of the State, and that the State cannot appeal in any criminal case, we are not prepared to give our assent to the proposition thus broadly stated. It is very true that there are several cases which decide that a new trial will not be granted in a criminal case where the defendant has been acquitted.—State vs. Riley, 2 Brev., 444; State vs. Wright, 2 Tr. Con. Rep., 517; State vs. Edwards, 2 N. & McC., 13; and State vs. Bowen, 4 McC., 254. But in all these cases the appeal was after the acquittal of the defendant; and the reason given was, that if in such a case a new trial was granted, it would be in violation of the great principle of the common law, that no person should be twice put in jeopardy for the same offense. This reason would not apply to the present case, for in the case of the State vs. Fley and Rochelle (2 Brev., 338,) it was contended that Rochelle, having been discharged from a former commitment for the same offense, for delay in the prosecution, under the 7th Section of the habeas corpus Act, could not be legally indicted and tried on the same charge; but the Court held otherwise, for the reason that such discharge could not, upon any sound principle, be considered as an acquittal, and the prisoner was accordingly tried and convicted. Again, may not this appeal be [512]*512regarded as taken, not in behalf of the State, but in behalf of the Superintendent of the Penitentiary, the officer charged with the custody of the petitioner, whose duty it would be to see that, if the petitioner is discharged, the discharge should be legal ? It is very obvious that this case does not belong to that class of cases of which Carmand vs. Wall, (1 Bail., 209,) State vs. Friday, (4 Rich., 291,) State vs. Bowen, (3 Strob., 573,) and ex parte Bell (14 Rich., 7,) furnish examples, in which it is held that where, by statute, jurisdiction has been conferred upon an inferior or special tribunal, no appeal is allowed from the decision of such tribunal unless the statute expressly secures the right of appeal. For if the jurisdiction exercised by the Circuit Judge in this case should be said to have been derived from the provisions of the habeas corpus Act, as incorporated in the General Statutes of this State, then, as we shall see presently, the right of appeal is therein expressly allowed. If, on the other hand, the jurisdiction exercised was derived from the common law, then it is plain that the principle decided by the above-mentioned eases does not apply.
Should the objection be based upon the ground that an appeal from the decision of a Circuit Judge in an application for the writ of habeas corpus is not allowed, we have only to refer to the cases of ex parte Kottman, (2 Hill, 363,) ex parte Schumpert, (6 Rich., 344,) and ex parte Williams, (11 Rich., 452,) in which such appeals have been entertained, and to the case of ex parte Pereira, (6 Rich., 149,) in which it was held that an appeal from the decision of a Circuit Judge refusing a writ of habeas corpus will not be heard if, before the application for the hearing of the appeal, the petitioner has been set at liberty and has gone beyond the jurisdiction of the Court, for the reason that it would be a nugatory proceeding. It is true that in none of these cases was the question now under consideration distinctly raised, but that very fact affords strong grounds for the inference that no doubt upon the question was entertained. In Pereira’s case objection was made to hearing the appeal, and a motion submitted to strike the case from the docket of the Court of Appeals, — not, however, upon the ground that the case was not appealable, but on the ground that, the defendant being then beyond the jurisdiction of the Court, it would be a useless waste of time to proceed further with the case.
We think, however, that the question is settled by the provisions of Section 19, Chapter CVIII, General Statutes, p. 546, which is [513]*513in these words: “An appeal from all final decisions rendered on applications for writs of habeas corpus shall be allowed as is provided by law in civil actions.”
If it should be contended that this provision only applies to cases in which the writ is issued under the habeas corpus Act and does not cover the case in hand, which does not come within the provisions of that Act, inasmuch as the prisoner is in custody under a charge of felony, we would answer that the terms used in the Section are very broad, — broad enough to cover both classes of cases. The language is “an appeal from all final decisions rendered on applications for writs of habeas corpus,” &c., not from decisions on applications for the writ of habeas corpus provided for by this Chapter or this Act. There are no words in the Section implying that the Legislature intended to limit the right of appeal to any particular class of cases.
Again, when the Legislature, by Section 6, Chapter CV, General Statutes, p. 494, conferred upon “ each of the Justices of the Supreme Court” the power to issue various writs, among others the writ of habeas corpus, we see that they were very careful to secure the right of appeal to “ either party;” and when we find, in the case of Braker vs. Knight, (3 McC., 82,) Johnson, J., in speaking of the right of appeal, using such language as this: “ From the first organization of a Court possessing appellate powers, it has, so far as I have been able to learn, been the usage of the Court to entertain appeals from all orders made at chambers which in their operation were conclusive as to the rights of the parties,” followed by the equally strong language of O’Neall, J., in Pinckney vs. Henagan, (2 Strob., 255,) approved in the State vs. Hunt, (4 Strob., 339,) we are admonished that the right of appeal should not be abridged or denied, except where the law denying or abridging such right is very clear.
Turning, then, to the merits of the case, we find that the Circuit Judge, after reaching various conclusions of fact, (which it is unnecessary to state here in detail, as the facts which we regard as conclusive of this case are not controverted and will be hereinafter stated in their appropriate place,) found as conclusions of law : “ 1st. D. H. Chamberlain was not, on the 7th day of December last, ■legally installed as Governor of South Carolina. 2d. Wade Hampton was not, on the 14th day of December, 1876, legally installed into the office of Governor of said State. 3d. The attempted installation of D. H. Chamberlain being illegal and void, it did not [514]*514operate in law as a resignation of the office of Governor which he held at that time. As by the Constitution the Governor holds his office for two years, and until his successor is chosen and qualified, and as there has been no legal qualification of his successor, D. H. Chamberlain is lawfully in the possession of the Executive office and entitled to discharge the legal functions of the same until such qualification takes place.”
It will be conceded, for the purposes of this ease, that Mr. Chamberlain was entitled under the provisions of Section 2, Article III, of the Constitution to hold the office of Governor until his successor was “ chosen and qualified,” unless he had by formal resignation, or other act equivalent thereto, resigned or abandoned the office, or had by his conduct estopped himself from claiming to hold over under that Section.
It becomes necessary, therefore, to consider three questions: 1st. Had the successor of Mr. Chamberlain been “chosen and qualified” on the 20th December, 1876? 2d. Had Mr. Chamberlain, on the 20th December, 1876, resigned or abandoned the office of Governor which he had been holding for the preceding two years, by virtue of the election held in 1874? 3d. Had he es-topped himself from claiming to hold over under the provisions of Section 2, Article III, of the Constitution of this State? An affirmative answer to either of these questions will show that the paper purporting to be a pardon can have no legal efficacy as such, and therefore that the circuit decision was erroneous and should be overruled. The first question has so recently undergone a thorough consideration in this Court, in the case of ex parte Tilda Stephens, alias Tilda Norris, and the conclusion then reached is so well sustained by the able and elaborate argument contained in the opinion of the present Chief Justice, that it would be a useless effort to attempt to add anything to it. But as the case involves the gravest of inquiries, it has been thought proper that we should state some of the reasons, without elaborating the arguments, which have led us to the conclusion heretofore announced in this case. There are certain facts bearing upon this question which are conceded on all hands, namely, that on the 7th November, 1876, an election was held, for the purpose, amongst other things, of choosing a successor to Mr. Chamberlain, the then incumbent of the office of Governor, that at such election there were but two persons voted for to fill that office — Wade Hampton and D. H. Chamberlain; that the re[515]*515turns of the Managers of the election showed that Governor Hampton had received the highest number of votes; that the election was not contested; that on the 14th December, 1876, Governor Hampton qualified as Governor by taking the oath of office in the presence of the body of men which, by the recent decision of this Court in the case of The State, ex rel. Wallace, vs. Hayne and Mackey, had been determined to be the lawful’ House of Representatives of this State, and in the presence of such members of the Senate as saw fit to attend, upon an invitation sent to that branch of the General Assembly by the House of Representatives; and that immediately thereafter Governor Hampton entered upon the discharge of the duties of the office of Governor; in so far as he was not prevented by the refusal of Mr. Chamberlain, backed by the military power of the United States government, to surrender the office of Governor, and so continued until the 20th December, 1876, and afterwards. On this state of facts it is clear to our minds that at the time Mr. Chamberlain undertook to sign the pardon in question his successor had been “chosen and qualified.” It is very obvious that in a government like ours, where the people are the source of all powers, that the title, to an elective office depends upon, and is derived from, the election — the choice of the people, as manifested at the ballot box; and that it cannot be made to depend upon the acts or omissions of individuals, whether assembled in the form of Returning Boards or Boards of State Canvassers, or by whatever other name they may be styled. Otherwise the choice of officers would not rest with the people, but with these Boards, which, viewed in the light of recent events, are regarded by some as devices contrived by the ambitious and unscrupulous to defeat, rather than to carry into effect, the choice of the people. Accordingly, we find in the Constitution of this State (Article VIII, Section 10,) a general provision declaring that “in all elections held by the people under this Constitution the person or persons who shall receive the highest number of votes shall be declared elected.” And in Article III, Section 4, this general provision is applied specially to the elec, tion of Governor: “The person having the highest number of votes shall be Governor.” Whenever, therefore, it' is ascertained, by any competent authority, that a certain person has received the highest number of votes for the office of Governor, that person must, under the Constitution, be entitled to the office, unless the election is contested in the mode prescribed by law. Now, in this case, this [516]*516Court, invested with competent'authority to determine the issues involved, one of which is whether any person, and, if so, who, was chosen Governor at the election in November last, sees the fact to be that, on the face of the returns of the Managers of Election, Governor Hampton has received the highest number of votes, and the result necessarily follows that, prima facie, he is the person whom the people have chosen Governor.
It is wholly unimportant to consider what conclusions the Board of State Canvassers reached, for it is admitted that they had no authority whatever to canvass the vote for Governor; and the fact that in canvassing the votes for other officers voted for at the same election they reached certain conclusions, could, at the very utmost, furnish only a presumption that the results which they had reached in reference to others would also be reached in reference to the office of Governor, provided we could persuade ourselves to adopt the same questionable mode of proceeding which they saw fit to do, to which we are very far from being inclined, and provided also that the vote for Governor was not essentially different from that for other State officers; but even then it would be very far from being conclusive. Indeed, to ask a Court of supreme jurisdiction to be governed by the decision of an inferior tribunal, composed not only of partisans but of persons, some of whom were directly interested in the result of, the decision, is a proposition of so novel and extraordinary a character that it is difficult to treat of it in language becoming to a judicial opinion. It is said, however, that the only mode by which it can be ascertained who received the highest number of votes for Governor is pointed out in Article III, Section 4, of thé Constitution, and unless that mode is pursued the fact never has and never can be legally ascertained. That Section of the Constitution is in the following words: “The returns of every election of Governor shall be sealed up by the Managers of Elections in their respective Counties and transmitted by mail to the seat of government, directed to the Secretary of State, who shall deliver them to the Speaker of the House of Representatives at the next ensuing session of the General Assembly, and a duplicate of said returns shall be filed with the Clerks, of the Courts of said Counties, whose duty it shall be to forward to the Secretary of State a certified copy thereof, upon being notified that the returns previously forwarded by mail have not been received at his office. It shall be the duty of the Secretary of State, after the expiration of [517]*517seven days from the day upon which the votes have been counted, if the returns thereof from any County have not been received, to notify the Clerk of the Court of said County and order a copy of the returns filed in his office to be forwarded forthwith. The Secretary of State shall deliver the returns to the Speaker of the House of Representatives at the next ensuing session of the General Assembly ; and during the first week of the session, or as soon as the General Assembly shall have organized by the election of the presiding officers of the two houses, the Speaker shall open and publish them in the presence of both houses. The person having the highest number of votes shall be Governor; but if two or more shall be equal and highest in votes, the General Assembly shall, during the same session, in the House of Representatives, choose one of them Governor viva voce. Contested elections for Governor shall be determined by the General Assembly in such manner as shall be prescribed by law.”
It will be observed that the language of this Section is, not that the person having the highest number of votes shall be declared Governor, but that such person “shall be Governor.” Inasmuch, however, as the word votes clearly means legal votes, the Section proceeds, after providing for a difficulty which might arise from two persons having the same number of voles, to provide a means of ascertaining whether the votes set down to one person or another were legal votes, by making provision for a contested election. The other provisions of this Section requiring the Managers of Elections to transmit the returns to the Secretary of State, who is required to deliver them to the Speaker of the House of Representatives,'to be by him o’pened and published in the presence of both houses, are not essential to the validity of the election or the ascertainment of the result. The Section does not provide that the person then or ihus found to have the highest number of votes shall be Governor, as it doubtless would have done if the intention had been to make these provisions essential. It is much more probable that these provisions were inserted for the purpose of informing the General Assembly officially whether the returns exhibited a result, — two persons having the same number of votes, which would render it necessary for them to take action in the matter, — or for the purpose of enabling the General Assembly to take such action as would be necessary in case the election was contested. The prima facie result of the election would necessarily be known before that time, [518]*518as by one of the provisions of this Section the returns of the Managers of election are required to he filed in the offices of the Clerks of the Courts of the several Counties, — offices which are at all times open to public inspection. There is not a word in the Section which would either expressly or by implication convey the idea that the General Assembly were to canvass the returns. The Speaker is not directed to open the returns and lay them before the General Assembly, which might imply that they were to be considered by that body, and accepted or rejected as they might determine. He is not directed to ascertain and publish the result of the returns, but he is simply to “open and publish them,” — that is, the returns, which speak for themselves; and if they say that a certain person has the highest number of votes, then the Constitution steps in and says that person “shall be Governor.” The Secretary of State and the Speaker have scarcely more than mere mechanical acts to perform; and to say that the omission of these acts of mere formality, whether proceeding from ignorance, carelessness or from something worse, can have the effect of defeating the choice of the people, would be sacrificing the substance to the shadow, and would be putting a construction on the terms of the Constitution by which an instrument framed to protect the rights of the people would be perverted so as to defeat those rights if at any time an officer should, through ignorance or carelessness or contumacy, fail to perform a merely formal act.
The foregoing views are not without the support of authority. In Johnson vs. Wilson, (2 N. H., 202,) Woodbury, J., says: “On general principles, the choice of a person to fill an office constitutes the essence of his appointment. * * * After the choice, if there be a commission, or an oath of office, or any ceremony or inauguration, these are forms only, which may or may not be necessary to the validity of any acts under the appointment, according as usage and positive statute may or may not render them indispensable.” It is curious to note that this very principle has been practically recognized and acted upon in this State ever since its reconstruction. For by the terms of Article III, Section 2, of the Constitution, it is provided that the Governor “shall be installed during the first session of the said General Assembly, after his election, on such day as shall be provided for by law.” As no day for this purpose has ever yet been provided for.by law, and as Governor after Governor has been installed and acted without question, this is probably one [519]*519of the instances in which Woodbury, J., would say this is a mere form following after the material matter of the election, which usage had rendered not indispensable. (See also Marbury vs. Madison, 1 Cr., 137; McBee vs. Hoke, 2 Speer, 138; and Kottman vs. Ayer, 3 Strob., 92.) If it was supposed that the prima facie result, as indicated by an inspection of the returns of the Managers of Election, was not the real and true result of the election, on account of fraud or from any other cause, then the Constitution, as we have seen, provided for contested elections, by which these returns could have been subjected to the most rigid scrutiny. But as this, the only mode provided for in the Constitution by which, the returns could have been scrutinized and corrected if found to be in any respect erroneous, was not resorted to, (there being no pretense that any step whatever was taken looking to a contest of the election,) the prima facie result must necessarily stand as the correct and legal result of the election. But the Circuit Judge, without deciding the question as to who was “chosen” Governor at the election in November last, has found that neither Chamberlain nor Hampton were “legally installed” as Governor under that election, and therefore concludes that Chamberlain held over under his election in 1874. This renders it necessary for us to inquire, not whether, as the Circuit Judge puts it, Governor Hampton had been legally installed as Governor prior to the 20th of December, 1876, for the Constitution is entirely silent as to the mode in which the Governor shall be installed, and we are aware of no act of the Legislature prescribing any particular mode of installation, from which it would seem that one mode of installation is quite as legal as any other, but whether, prior to that day, Governor Hampton had “ qualified” as Governor. For, as we have seen, the Constitution, in Article III, Section 2, does provide that the Governor shall hold his office for two years “and until his successor shall be chosen and qualified” — not installed.
To determine this question, it is necessary to inquire what is meant by the term “ qualified ” as used in this Section of the Constitution. The only provision of that instrument which throws any light upon that inquiry is the 20th Section of Article III, which is in these words: “The Governor and Lieutenant Governor, before entering upon the duties of their respective offices, shall take and subscribe the oath of office as prescribed in Article II, Section 30, of the Constitution.” This being the only thing required of the [520]*520Governor before entering upon the duties of his office, it is difficult to conceive of any other appropriate signification of the word “ qualified ” than that he shall take the oath of office. What is the object to be attained by requiring the Governor elect to qualify ? As he is not required to give bond or do any other act, except to take the oath of office, there can be no other object but to signify his acceptance of the office to which he has been chosen- and to pledge himself, in the most solemn manner, to the performance of its duties. It is conceded that Governor Hampton did, on the 14th December, 1876, take and subscribe the oath of office,' as prescribed in the Constitution, and while all of the ceremonies usual on such occasions were not observed, owing to the refusal of the Senate to attend as a body, we are aware of no law which makes such ceremonies, although eminently proper and suitable to the diginity of the occasion, essential to a legal qualification. It follows, therefore, that Mr. Chamberlain could not successfully claim to hold the office of Governor on the 20th of December, 1876, under the provisions of Article III, Section 2, of the Constitution, as decided by the Circuit Judge, because prior to that time his successor had been “ chosen and qualified.” The error of the circuit decision may also be made to appear from other considerations growing out of the following state of facts, which are conceded : Mr. Chamberlain was a candidate for re-election at the election held on the 7th November, 1876, and, claiming to have received the highest number of votes, he on the 7th December, 1876, (to use the language of the Circuit Judge,) “assumed to take the official oath prescribed by the Constitution and deliver the address usual upon installation, and from that time has claimed to be Governor by virtue of his last election and installation.” Two views of this conduct of Mr. Chamberlain’s may be taken : First, That he thereby resigned the office of Governor which he held under the election of 1874. 2d. That by electing to claim the office under the election of 1876, he is estopped, when such claim proves groundless, from falling back upon his right to hold over under the provisions of Article III, Section 2, of the Constitution. There can be no doubt but that a person may resign an office by his acts as fully and completely as by the most formal declaration in words.
The question in such cases is one of intention. What, then, was Mr. Chamberlain’s intention, as manifested by his act, in going through the ceremony of inauguration on the 7th. December, 1876, [521]*521and asserting his claim to the office of Governor by virtue of the election in November last ? His right to hold over ceased the moment his successor was elected and qualified, and this right he could, of course, resign at any moment he saw fit. What does he do? He not only asserts a claim -that his successor has been chosen and qualified, but he acts upon such assertion. This he could not do without renouncing or resigning a previous claim so wholly inconsistent that the two could not for a single moment coexist. The moment the intention was formed in his mind to claim the office under the last election, there must necessarily have been an intention to abandon, renounce or resign his claim to hold over, as the existence of one claim necessarily presupposed the non-existence of the other. It is very true that if this intention had remained in the mind of Mr. Chamberlain, unexpressed by any word or act, it would have amounted to nothing. But the moment such intention was'expressed by his acts, he as fully and completely resiguéd his office as if he had done so in the most formal words. It is wholly immaterial that his claim to hold under the last election proved unsuccessful. His resignation resulted from his assertion of the claim, and from his acting upon such assertion. The moment he asserted his claim to hold under the last election he necessarily thereby asserted that his successor had been chosen and qualified; and when he proceeded to- act upon such assertion, he at that very moment, by necessary implication, asserted that he abandoned, renounced or resigned his claim to hold over, because such claim could not possibly exist after his successor was chosen and qualified. It will not do for him to say, after he has discovered that he cannot successfully assert his claim under the last election: “I withdraw my claim and thereby annul my implied resignation.” Suppose that Mr. Chamberlain had, in the most formal manner, resigned his former title, under the belief that he was elected at the last election, and that it was necessary for him to resign his former title before he could accept the office under the last election, — could he, upon discovering his mistake, repudiate such resignation and claim that it was null ? Surely not. The question in such a ease would be, has ■he' resigned? The reason which induced him to resign, whether well or ill founded, could not affect the inquiry.
Or, suppose that Mr. Chamberlain, believing himself elected to the United States Senate, had, without any formal resignation of. his office of Governor, done such acts as would necessarily imply-[522]*522an acceptance of the office of Senator, as by receiving his credentials and presenting them to the Senate, — could he, upon being refused admission to a seat in that body upon the ground that he was not really elected, after an absence in Washington of months perhaps, as has been the ease in at least one notable instance, come back to South Carolina and claim that he still held the office of Governor, upon the ground that, though he had intended to resign or abandon the office of Governor and take that of Senator, under the belief that he had been legally elected to the latter office, yet, finding he was mistaken, his conduct, which, otherwise, it must be admitted, would have amounted to a resignation, induced by a false hope into which he had deceived himself, ought not to be so regarded, because he had acted under a mistake? The answer certainly would be: “No. If you were induced to resign your office as Governor under the mistaken hope and belief that you had been elected to another office, that is your misfortune; but your mistake and disappointment cannot have the effect of altering the fact that you did resign, no matter what was the-motive which induced you to do so.” This view is supported by the case of ex parte Gray, (Bail. Eq., 78,) in which Hunt, upon being defeated by Gray for the office of Commissioner in Equity, at the election held in 1829, refused to surrender the office upon the ground'that, under the Constitution and laws of the State, the tenure of that office was during good behavior and not for four years only. The Court of Appeals, per Colcock, J., uses this language: “But if we could support the respondent in his construction of the Acts, and believed that it was the intention of the Legislature, in the first establishment of his office, to put him, in all respects, upon a footing of equality with the then Master in Equity, and that they considered him consequently as holding during good behavior, yet, in this case, I am of opinion that the respondent, by having become a candidate for the office under the terms prescribed by the Act, had voluntarily resigned all right to the first tenure and could not now claim the office.” If, however, the conduct of Mr. Chamberlain in claiming the office of Governor under the last election and going through the form of inauguration did not amount to a resignation of the office under the preceding election, the third question still remains, whether Mr. Chamberlain is not thereby estopped from now setting up a claim to hold over under the provisions of Article III, Section 2, of the Constitution of this State. Mr. Bige-[523]*523low, in his treatise on estoppel, states the doctrine thus: “A party cannot occupy inconsistent positions; and where one has an election between several inconsistent courses of action, he will be confined to that which he at first adopts.. * * * * Any decisive act of the party, done with a knowledge of his -rights and of the facts, determines his choice and works an estoppel.” Now in this case Mr. Chamberlain had before him two inconsistent courses of action, — so inconsistent that the one was necessarily based upon the assumption that his successor had not been “chosen and qualified;” the other, that his successor had been “chosen and qualified.” With a full knowledge of his rights and of the facts, he does a decisive act, and in the most public and formal manner proclaims to the world the choice which he has made, and, in the language of the writer above quoted, “he must abide by it.” The fact that the course of action which he chose did not yield the fruits w'hich he expected can in no way affect the question. The estoppel results from the fact of his having made the choice, and does not depend upon the value of the thing obtained by such choice, or indeed upon whether anything at all was obtained. If it did, this doctrine of estoppel could rarely, if ever, be practically applied. For, if a party got by his choice what he desired and expected, he would not be likely to make any controversy, and, therefore, the question of estoppel could not arise; and if the doctrine is not to be applied because the party did not get what he expected and desired by his choice of a course of action, then it is difficult to conceive of any case in which the doctrine would be of any practical importance.
In accordance with the views herein announced, the order reversing the judgment of the Circuit Judge and remanding the prisoner to the custody of the Superintendent of the Penitentiary has heretofore been granted.
Willard, C. J., concurred.